Barclaycard cannot provide credit agreement

[citizenB]

StepChange Debt Charity is funded by voluntary contributions from the credit industry, such as Lloyds TSB, Barclays and HSBC.

 

 

as is PayPlan - quote taken from their website

 

"The credit industry recognises our services and many creditors agree to pay us a small donation for providing this service to you."

 

 

Carey was all about fulfilling an s78 request. Had Carey not decided to force the issue, and let HSBC take them to court, then the outcome might well have been different.

 

A reconstruction for an s78 request could possibly fulfil the requirements as long as the reconstruction was truthful. For those agreements prior to 2007, I understand that the original is required should the creditor decide to litigate.

 

Prior to 2007, HSBC did indeed have some issues with their agreements. As well as in some instances, in their haste to sign up customers, they failed to get an agreement signed at all .. This is possibly one of the reasons they were so keen to roll up credit card debt into their famous "managed loans" So Carey and their "legal team" did no one any favours. But it is not the magic bullet the creditors hoped for.

[citizenB]

Barclays have admitted they cannot comply with my cca request. However they did produce a reconstituted copy of the credit agreement with a statement of my account as being the current balance of my account as £1,538.07. They went on to say that notwithstanding that they cannot currently enforce the agreement, their rights continue to exist under the agreement and I should therefore continue to pay the debt under the agreement.

 

In 2004 Moorcroft were acting on behalf of Egg. In 2011 Barclays took over the account and Moorcroft continued acting on their behalf so I see no reason why Moorcroft cannot take action on Barclays' behalf.

The letter I received came from Moorcroft, so would welcome a clear statement in a letter form that I can send to them.

 

If Moorcroft have "purchased" the debt - then they would be able to litigate under their own name.

 

If they are just acting as a debt collector/administrator for B/shark then they would not be able to bring a claim on behalf of B/shark. B/shark would bring the claim in their own name.

 

I am not quite sure what type of letter you are looking for !!

[Peterbard]

Barclays have admitted they cannot comply with my cca request. However they did produce a reconstituted copy of the credit agreement with a statement of my account as being the current balance of my account as £1,538.07. They went on to say that notwithstanding that they cannot currently enforce the agreement, their rights continue to exist under the agreement and I should therefore continue to pay the debt under the agreement.

 

In 2004 Moorcroft were acting on behalf of Egg. In 2011 Barclays took over the account and Moorcroft continued acting on their behalf so I see no reason why Moorcroft cannot take action on Barclays' behalf.

The letter I received came from Moorcroft, so would welcome a clear statement in a letter form that I can send to them.

 

If a reconstructed agreement has been supplied it will more than likely comply with the requirements of section 78 anyway.

 

It sounds to me like they are not enforcing because they are worried that the lack of an actual agreement will be a problem.

 

If this is the case the OP needs to question that an agreement was signed or that the agreement was not properly executed in terms of section 127(3)

[cooldad]

If Moorcroft have "purchased" the debt - then they would be able to litigate under their own name.

 

If they are just acting as a debt collector/administrator for B/shark then they would not be able to bring a claim on behalf of B/shark. B/shark would bring the claim in their own name.

 

I am not quite sure what type of letter you are looking for !!

 

I received a letter from Moorcroft dated 23/05/2013 saying IMPORTAMT INFORMATION - POSSIBLE LITIGATION. Please do contact us now. (The full text is on page 2 of my correspondence)

 

I do not wish to ignore this letter, so I would be grateful if someone could advise me as to what I should be writing in a letter as a reply.

[fletch70]

This is standard moorcroft crap. As i said earlier i would send them a copy of the letter from Barclaycard saying they can not enforce.

I have quite a collection of threats from them myself. So far nothing.

As Citizen B explained unless they have bought the debt they are unable to commence action.

[cooldad]

With respect fletch, it's not quite as easy as that. I received a letter from Moorcroft last month stating, "Further to your request for a copy of your client's credit agreement, we regret that our client is unable to produce a copy of the document.

 

Notwithstanding this our clients believe that the above balance remains due and payable. The Information Commissioner's Office has confirmed that whereas a debtor is not obliged to repay the account due to the provisions of the Consumer Credit Act, this does not mean that there was no agreement."

 

So you see fletch, I would need something more substantive in my reply to Moorcroft's letter I received 2 days ago.

[slick132]

Hi CD,

 

Despite all that's been said since my post #44 above, I still stand by it.

 

If BC have said there's no original agreement, they're not likely to take action to enforce.

 

Why not wait and see what Moorcroft are going to do about this, You are likely to be be better responding to their actions rather than being pro-active,

 

Or you can make an offer to pay through a free DMP provider.

 

[citizenB]

I would agree with slick, if you read round other Moorcroft threads, you will see that they love nothing more than to engage in "letter tennis". You will also see that most of the time, their letters are mis matched cut and paste jobs with no continuity with their arguments.

 

In this instance, wait and see what their next move is.

[Peterbard]

Yes I agree, if you do not wan't to start a DMP.I would wait for them to make the next move. These letters are usually just threatograms and come to nothing.

 

Just to attempt to clarify the position.

What they are saying(form the information you provided) is that they cannot enforce the agreement for whatever reason. This means that they do not consider taking you to court to be an option.

 

This does not mean that the law prohibits them asking you for the money( as long is it is not so persistent that it is considered harassment)it just means they just cannot start any court proceedings.

 

If this is indeed the situation you are safe in just telling them to go away.

 

If you decide to start a DMP, perhaps you have other unsecured debts that you are struggling with, the procedure I would recommend is to ring one of the free ones mentioned earlier in this thread

Generally they will give you a call back date when one of their operatives will go thorough your finances and find out how much spare income you have after your living expenses and priority bills are paid .

This is then divided on a pro-rata basis between the creditor( each gets an amount relevant to the size of the debt)

 

After you make your phone call to the DMP I would recommend contacting the creditors and telling them that you were initiating a DMP and tell them the name of provider, guidelines says that they should suspend all collection practices for one month whilst the paperwork is processed.

 

You can of course do you own DMP there are several available the CAB do an excellent one and I think there may be one available on here, my opinion is that the free managed ones are better, in that they do the leg work for you, they send all the letters and they give you an on line account which simplifies keeping track of your payments.

 

Also I have found that creditors tend to believe income and expenditure statement prepared by a reputable free agency and are more likely to stop interest and charges being added to the account.

 

 

So In my opinion these are your best options, either play the waiting game and see what their next move is or get a DMP underway.

Edited May 27, 2013 by Dodgeball

[fletch70]

With respect fletch, it's not quite as easy as that. I received a letter from Moorcroft last month stating, "Further to your request for a copy of your client's credit agreement, we regret that our client is unable to produce a copy of the document.

 

Notwithstanding this our clients believe that the above balance remains due and payable. The Information Commissioner's Office has confirmed that whereas a debtor is not obliged to repay the account due to the provisions of the Consumer Credit Act, this does not mean that there was no agreement."

 

So you see fletch, I would need something more substantive in my reply to Moorcroft's letter I received 2 days ago.

 

Please try not to stress. Listen to Cit B and slick. There is a legal case called i think McCuffick v RBS. which clearly states what can and can not be done with an unenforceable debt. These include asking for the money,reporting to your credit file, basically you do still owe the money but they can do everything legal short of obtaining a judgement to get it. At this point you would be waiting for a period of 6 years (5 in Scotland) with no payment or acknowledgement.

 

It does get easier,i now get a flurry of letters once or twice a year and bat them off.

 

Seriously trust Cit B I do which from me is great praise lol.

[Peterbard]

yes , my concern was the statement that these debts CANNOT be enforced, this is not the case.

 

It is unlikely that a creditor will try to enforce without an original agreement and if he does the case can be contested, but it is certainly not true to say that a creditor cannot attempt to enforce an agreement even if he no longer has it.

 

Unfortunately there have been cases where just such a thing has happened, and the case law is clear.

[cooldad]

Please try not to stress. Listen to Cit B and slick. There is a legal case called i think McCuffick v RBS. which clearly states what can and can not be done with an unenforceable debt. These include asking for the money,reporting to your credit file, basically you do still owe the money but they can do everything legal short of obtaining a judgement to get it. At this point you would be waiting for a period of 6 years (5 in Scotland) with no payment or acknowledgement.

 

It does get easier,i now get a flurry of letters once or twice a year and bat them off.

 

Seriously trust Cit B I do which from me is great praise lol.

 

Thank you fletch and all you gentlemen who have contributed to this thread.

 

This is a bit of a test case for me because although in this case my debt is £1500 there is another company on the horizon that I shall be dealing with to whom I owe over £9K. (In for a penny in for a pound).

I'm going to go with fletch's, Cit B and slick's advice and sit still and see what happens next.

 

Fletch, there's just one point in your last statement that I'm not clear about. You say that, "at this point you would be waiting for a period of 6 years." As I mentioned previously, I've already had a default registered in 2004 which came off in 2010 so I assume Moorcroft can't report anything further to my credit file, so what is this period of 6 years you are referring to and how do you bat these letters off?

[fletch70]

The clear 6 years is to get the debt statute barred. After 6 years of no payment or acknowledgement the debt becomes statute barred. Once statute barred it is effectively dead.

As an example if you pay a quid a month after 100 years you would still owe some money which would be due out of your estate.

Now the default has come off it can not be added again.

Usually a letter enclosing a copy of the we can not enforce letter and possibly a harassment letter sees them off.

Take it one step,one letter at a time.

 

I can not PM anyone as i was a naughty boy in a previous life but if you need to you can pm me with a link to a thread if i can help i will.

 

Now for the big one,maybe you could give some general details as to date, status,have you sent cca requests off yet. Maybe in a different thread.

 

Jon.

Edited May 27, 2013 by fletch70

[fletch70]

yes , my concern was the statement that these debts CANNOT be enforced, this is not the case.

 

It is unlikely that a creditor will try to enforce without an original agreement and if he does the case can be contested, but it is certainly not true to say that a creditor cannot attempt to enforce an agreement even if he no longer has it.

 

Unfortunately there have been cases where just such a thing has happened, and the case law is clear.

 

Can you provide the case law?

Are these defended claims or judgements by default.

 

I agree that defended judgement would be given equally with a bad defence it could happen. However with the help of people on here especially the site team it can be stopped

[Peterbard]

Thank you fletch and all you gentlemen who have contributed to this thread.

 

This is a bit of a test case for me because although in this case my debt is £1500 there is another company on the horizon that I shall be dealing with to whom I owe over £9K. (In for a penny in for a pound).

I'm going to go with fletch's, Cit B and slick's advice and sit still and see what happens next.

 

Fletch, there's just one point in your last statement that I'm not clear about. You say that, "at this point you would be waiting for a period of 6 years." As I mentioned previously, I've already had a default registered in 2004 which came off in 2010 so I assume Moorcroft can't report anything further to my credit file, so what is this period of 6 years you are referring to and how do you bat these letters off?

 

It was also one of the options I mentioned incidentally.

 

As for recording on your credit file, if you have made an arrangement post default the owner of the account can record that payment history.

[BRIGADIER2JCS]

Hi cooldad it would be better to start a new thread for the 9K debt so as not to confuse matters on this thread.

 

Agreed on the reporting post default up to a point the current owner of the account should NOT change a default entry to an arrangement to pays, which seriously disadvantages the debtor compared to an individual who has made no effort to repay a debt.

 

The ICO has a view that such action is unfair.

[cooldad]

The clear 6 years is to get the debt statute barred. After 6 years of no payment or acknowledgement the debt becomes statute barred. Once statute barred it is effectively dead.

As an example if you pay a quid a month after 100 years you would still owe some money which would be due out of your estate.

Now the default has come off it can not be added again.

Usually a letter enclosing a copy of the we can not enforce letter and possibly a harassment letter sees them off.

Take it one step,one letter at a time.

 

I can not PM anyone as i was a naughty boy in a previous life but if you need to you can pm me with a link to a thread if i can help i will.

 

Now for the big one,maybe you could give some general details as to date, status,have you sent cca requests off yet. Maybe in a different thread.

 

Jon.

 

What is a PM? I'm sure it's not the Prime Minister.

[BRIGADIER2JCS]

Private Message, Cag prefers that advice and links are given on the open forum!!

[BRIGADIER2JCS]

cooldad for clarification when was the last financial transaction on this account?

[cooldad]

cooldad for clarification when was the last financial transaction on this account?

 

1st March 2013.

[BRIGADIER2JCS]

So you have been paying an account with no provable agreement!

[Peterbard]

Hi cooldad it would be better to start a new thread for the 9K debt so as not to confuse matters on this thread.

 

Agreed on the reporting post default up to a point the current owner of the account should NOT change a default entry to an arrangement to pays, which seriously disadvantages the debtor compared to an individual who has made no effort to repay a debt.

 

The ICO has a view that such action is unfair.

 

It is all i the guidance, the arrangement to pay will be recorded as a new arrangement, the earlier default will still fall off after six years however the repayment arrangement will show as a reducing debit balance on the loan.

[BRIGADIER2JCS]

BUT CAN and HAS BEEN CHALLENGED SUCCESSFULY THE ICO QUOTE IS FROM A LETTER TO ME AFTER A PROFESSIONAL INQUIRY ON THIS EXACT SCENARIO.

 

One must be extremely careful extrapolating data from ''guidance' and case law, the Carey judgement for instance is unusual as Citizen BV has wisely stated is ''peculiar'' as the case was brought the individual and NOT the bank and may have had a totally different outcome had the rolls been reversed.

[BRIGADIER2JCS]

It is all very smart to quote these various pieces of information but it must be remembered that English civil law grows daily, and the interpretation of this is in the hands of the judiciary.

[Peterbard]

#Yes it is very "smart to quote evidence".

The remarks made in the Carey judgment were statement of law these are not dependent on the facts of the individual case. basically the Claimant says you had an agreement, and produces statements showing that there was monies loaned to you, that prima facie discharges his burden. The High Court has said clearly that the obligation to raise improper execution rests on the Defendant in such circumstances. The Debtor has to raise a case as to why the agreement is unenforceable. In Wegmuller the Court recited that point clearly HFO Capital Ltd v Roland Wegmuller [2012] EW Misc 19 (CC) (24 January 2012)

 

Sorry being "smart"again