need help with barclays and dca

[slick132]

Karen,

 

I'm sure Rory will stop by later.

 

Slick

[karen654321]

I really hope so.. thanks slickwilly132.

 

karen

[rory32]

They are basically saying that i would have applied for the loan online and agree to the terms and conditons over the phone and agreed to be bound by them.

 

And can they prove this? No they can't. The only way they can prove this is by providing a copy of the agreement (statements are irrelevant). You could just send them a letter asking for them to write the debt off as there is no way that they can enforce it and they have not complied with the various anti money laundering legislation (which is a serious offence). It might not work but it may make them realise that this is their best option under the circumstances.

[karen654321]

Hiya thanks rory.

 

Do you think if i just put they have not complied with the anti money laundering thats enough or should i go into detail how they did not comply?

 

Not very good with the wording of letters really struggling.

 

thanks very much

 

karen

[rory32]

Dear Sir/Madam,

Thank you for your letter dated xxxx, however I find it difficult to believe that you feel there is no requirement for such an important document as the copy of the credit agreement to exist.

As I am sure you are aware such documents should not only exist, but also be kept for a minimum of a 6 year period from the closure of the account.

It would appear that you have failed in your obligations to comply with the various anti money laundering regulations in not fulfilling your obligations to keep such documents. This, as I’m sure you are aware, is a very serious offence.

I now require the balance of this account to be returned to zero.

Please note you may also consider this letter 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 14 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 fail to respond within 14 days, I will 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 would apply:

• You may not demand any payment on the account, nor am I obliged to offer any payment to you.
  
• You may not add any further interest or charges to the account.
  
• You may not pass the account to any third party.
  
• You may not register any information in respect of the account with any of the credit reference agencies.
  
• You may not issue a default notice related to the account.

Please be aware, the CCA 1974 is very clear that a default can only be issued for breach of a valid, regulated agreement. As there is no agreement a default cannot be lawfully issued as no valid, regulated agreement has been breached.

 

Furthermore, please be aware that the recent letters and telephone calls received from Credit Solutions could, under the Administration of Justice Act 1970 section 40, be construed as unlawful harassment. As Credit Solutions are your agent any court claim regarding harassment would be brought against both Credit Solutions and yourselves, as you would be complicit in this action.

I would ask that you review this account and respond favourably within 14 days of the date of this letter. Failure to do so will result in me reporting this matter to The Financial Crime Branch of HM Treasury and any other authorities as I see fit.

I look forward to your reply in due course.

Yours faithfully

[karen654321]

Hiya, Still no reply to the letter i sent above.. But getting a few phone calls everyday now and letter from the dca...

 

Im not talking to them on the phone but logging calls and filing letters... Should i reply to each letter or just ignore now...

 

Last letter was from credit solutions on saturday reading

 

Our client is not prepared for this sum to remain outstanding any longer, and unless payment is made to credit solutions within 7 days from the date of this letter, court proceedings may be commenced against you without further warning or notice.

 

any help really appreciated

 

karen

[slick132]

Write to DCA - maybe use the letter in Rory's signature - Harassment by phone ltr.

 

Also tell them the full amount is now formally in dispute with bank and DCA must stop harassing you. If they fail to do this you will make a formal complaint about them to the FOS because of OFT Debt Collection Guidelines sections 2.6(a) and 2.8(k).

 

Write a letter of complaint to FOS as well reporting DCA for breach of these sections of the OFT DCG's.

 

Keep us posted.

[karen654321]

Hiya just to keep you updated. The debt now seems to have been passed to another dca. Ive telephoned them and told them the debt is in dispute. That barclays have failed to supply a copy of a credit agreement. And that i thought it was against the law to transfer a debt over that was in dispute.

 

they told me that they would look into this and get back to me.

 

i await a letter

 

karen

[slick132]

Hi Karen,

 

The advice is always DON'T SPEAK TO THEM.

 

Just send the new DCA a copy of your big letter to Barclays and tell them not to contact you again or they'll get reported to FOS and Trading Standards.

 

Write to Barclays and ask for reply to the big letter or you'll complain to FOS and TS to them too.

 

Did you send any complaint letters as suggested.

[karen654321]

Hiya thanks for quick reply. Yes i did sent letters as suggested. Barlcays have acknowledged and im waiting for a reply. Ive actually not had any contact since then till this letter stating the new dca has taken over.

 

thanks

 

karen

[slick132]

Time to chase Bank for reply then - and tell them to call off this new DCA and any others as they are in clear breach of OFT Debt Collection Guidelines.

[karen654321]

Hiya i had a nice email from the fos.. I wonder if someone would have a look. thanks

Thank you for your e-mail dated the 27th August 2007 regarding Credit Solutions. I would like to take this opportunity to apologise for the delay in responding to your concerns. This has been due to a large backlog of cases.

You have complained as you believe that Credit Solutions are pursuing you for a debt you are not responsible for. Organisations have to ensure that they hold adequate records to substantiate that the individual they are pursuing is the debtor. This information does not have to be a copy of a signed credit agreement as other information such as previous payments that have been made, or statements showing your address would also substantiate that you are responsible for the account.

If you believe that Credit Solutions do not hold adequate records to enable them to substantiate you owe the debt you would need to make a written complaint to them. If after 28 days you do not receive a response or you are not satisfied with the response you do receive we may be able to pursue this aspect of your complaint. In this case you would need to provide us with the following information:

· A copy of the letter you have sent to Credit Solutions;

· Any response you have received from Credit Solutions;

· A copy of the correspondence they have sent to you regarding this debt;

· Any supporting documentation you have to support your claim that you are not responsible for this debt;

· A signed and completed complaint form which can be accessed through the hyperlink below;

http://www.ico.gov.uk/upload/documents/library/data_protection/forms/ico-datap-how2comp-form.pdf

You have also complained as you have not received a response to the subject access requests you have sent to Credit Solutions and Barclays. If you have still not received responses and wish us to pursue this matter you would need to provide the following information:

· A copy of your subject access request;

· Any proof of postage or payment documentation you have;

· A signed and completed complaint form.

Finally you have complained that Barclays passed your details to Credit Services without your consent. Organisations do not need consent from individuals if they are able to satisfy one of the other conditions for processing personal data. In this case Barclays would have had a legitimate reason for passing information to Credit Services as they were trying to reclaim money which they believe is owed to them.

I appreciate that you believe that you are not responsible for this debt but based on the information you have provided it is not clear whether this is the case. As I explained above we can take this matter further if you provide us with the information we have asked for.

Yours sincerely

[slick132]

Hi Karen,

 

I'd go back to FOS and say you've heard nowt from Barclays or DCA in response to your CCA letter that Rory gave you in post #55.

 

Supply the stuff they want and leave it with FOS.

 

Keep making a log of any contact from DCA and send log to FOS. Send DCA a note of FOS Investigation Complaint Ref. No. and tell them they're going to be reported for Breach of OFT Debt Collection Guidelines.

[karen654321]

Hiya thanks for that. The bit im unsure about is

 

This information does not have to be a copy of a signed credit agreement as other information such as previous payments that have been made, or statements showing your address would also substantiate that you are responsible for the account.

 

I thought that in order for them to chase a debt there had to be somewhere a valid signed cca. Am i wrong in thinking this?

 

karen

[slick132]

Hi Karen,

 

You're right - AFAIK there HAS to be a document showing all the required info as per the CCA.

 

However, let's get a second opinion on this................

Edited June 27, 2008 by slick132
typo

[Curlyben]

What total bovine excrement.

Under CCA74 the agreement IS required especially for a loan.

Seems the FOS have got the wrong end of the stick completely here.

 

If they wish to enforce this agreement then it must be forth coming.

Even online or phone applications have a paper trail other than simple statements.

 

Without the agreement how do you know what you agreed to in the first place.

[Curlyben]

Well we'll take the FOS's advice to heart and send CS a formal complaint.

 

Formal Complaint

Letter before Action

 

Dear Sir/Madam,

 

With reference to my previous letters, I wish to draw you attention to your company's lack of compliance with my legal request.

 

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

You have failed to comply with my request, and as such the account entered default on **DATE**.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.

 

As you may not be aware , failure to comply with this request within 12 working days renders the alleged debt UNENFORCEABLE in law. Furthermore, if this non-compliance continues for a further month then a summary, criminal offence is committed.

 

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 compliant credit agreement is a very clear dispute and as such the following applies.

 

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

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

* may not pass the account to a third party.

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

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

 

Therefore this account has become unenforceable at law.

 

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

 

After taking advice, I am of the opinion that your continued pursuit is in violation of the Administration of Justice Act 1970 section 40, Protection from harassment Act 1997 section 3 as well as breaching a number of the OFT Collection Guidelines.

 

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.

 

I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you would prefer to do this than merely respond with standard letters and leaflets.

 

I would appreciate your due diligence in this matter.

 

I await your rapid response.

 

Yours Faithfully

[slick132]

Well Karen,

 

There you have it, straight from the horse's (or Orang-utang's) mouth.

 

FOS are talking Taurus-Excretum.

[Curlyben]

If you get no joy from the letter then I would be inclined to take this to Trading Standards as they are clearly chasing an unsubstantiated debt.

Part of TS's remit is enforcement of CCA and ensuring that the financial institutions play fair.

[karen654321]

Thank you so so much curlyben and slick. Your both a great help. Will get this letter sent of today and let you know of the response.

 

Do you think i should still reply to the ombudsman?

 

thanks

 

karen

[Curlyben]

To be honest, I'm thinking chocolate tea pots here.

Save them for later, you have time to respond to them if you want.

 

Karen could you possibly PM me a copy of the mail you sent to the FOS as their response has raised a couple of interesting question that I would like to look closer at.

[karen654321]

Yes of course. I will have to dig it out as it took them 5 months to reply to the email...

 

But yes will do

 

thanks once again

 

karen

[karen654321]

Hiya just to update. Its been really quite at the moment with this. I had heard nothing. Every day this week robinson way & co have been calling me. As i wont give them my date of birth etc they wont carry on the call. Very rude to me though.

 

Today i got a call from the fos. Im really confused now though. The lady basically said that although i dont acknowlege the debt, barclays can prove i originally had the money 10 years ago as they have statements showing it went into my account. She said that barclays only have to hold onto the cca for 6 years so there would not be any cca now.

I said i believe the debt was unenforceable as there is no valid cca. She basically said barclays have got it in black and white that i have had the money so they are within there right to seek court action to get the money back.

 

any advice would be really greatly appreciated now.

 

thanks

 

karen

[Goldlady]

I think the advice you have been given is debatable. I say this as I have at least three creditors who have not gone as far as court because they have no cca. In my case most of what they are chasing is interest and charges, and if they have no cca to show that I agreed to pay them interest and be charged silly amounts for minor indiscretions then I don't know what their argument would be.

 

The CCA 1974 is very clear that they need not only a cca but an enforceable cca to take court action.

Edited June 27, 2008 by Goldlady
typo

[karen654321]

Thanks for that goldlady. So do you think i should just sit tight now and wait or should i be doing something.

 

This is really worrying me because of the amount. I know they havent got a cca but it seems the fos disagree with everything that i have read on here which is without a valid cca the debt is unenforceable.

 

Dont really know what to do next.

 

any help would be appreciated

 

karen