Barclaycard - Are they lieing to me?

confused90

to cut a long story short i have an ongoing dispute with barclaycard, as part of the dispute i requested a copy of my original cca.

They sent me a photocopy of their general terms and conditions, it was not an agreement and it was not signed, in addition to this it was smudged and un-readable.

I refused the document as not satisfying my request for a signed executed copy of my consumer credit agreement in line with my request pursuant to s78 of the consumer credit act.

however, barclaycard have replied stating that it does fulfill their obligation under s78 of the consumer credit act....is this a lie?

Can credit card companies simply send you a copy of their terms and conditions to satisfy their obligation under s78 of the cca or does it have to be a copy of your original agreement?

my understanding is that what they sent does not satisfy their obligation but they have sent three long winded letters trying to prove that it does....are they just trying to blind me with bulls**t?.....some advice from those in the know would be greatly appreciated.

cheers.

Locke

Post it in this thread and Never-In-Doubt will help you out with what move to take next.

http://forums.moneysavingexpert.com/showthread.html?t=2060575

10past6

confused90 wrote: »

some advice from those in the know would be greatly appreciated

Fire the letter below of to them, come back and post once they reply:

I DO NOT ACKNOWLEDGE ANY DEBT TO YOUR COMPANY

Account Number: XXX

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

I note that you have replied to the above by sending your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

This breach of the agreement can be demonstrated as follows;
As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

Before leaving section 180 there are two other sections that should be remembered these are:

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

And more importantly

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

The regulations state:
(2) There may be omitted from any such copy-
(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;
(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.
It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

Yours faithfully

PRINT ONLY - DON'T SIGN YOUR NAME

confused90

thanks 10 past 6 i'm going to give that a go and i'll post back.....

one more point, and this is getting more to the crux of why i'm pursuing this, barclaycard defaulted me several months after failing to supply a true copy of my agreement and i thought that if they failed to supply a true copy of my original document then they could not default me as they entered into default of our agreement before they alledge that i entered into default.

they have defaulted me for refusing to make any further payments to the account after they failed to supply a copy my original agreement, i did this in the beleif that barclaycard could not default me if they are in default themselves first and in the beleif that i could not be defaulted for refusing to make further payments to a missold ppi policy which is what my balance is made up of, ppi charges plus default charges for not paying the misold ppi.

am i right on the above or did i make a !!!! up stopping payments?

never-in-doubt

confused90 wrote: »

thanks 10 past 6 i'm going to give that a go and i'll post back.....

one more point, and this is getting more to the crux of why i'm pursuing this, barclaycard defaulted me several months after failing to supply a true copy of my agreement and i thought that if they failed to supply a true copy of my original document then they could not default me as they entered into default of our agreement before they alledge that i entered into default.

they have defaulted me for refusing to make any further payments to the account after they failed to supply a copy my original agreement, i did this in the beleif that barclaycard could not default me if they are in default themselves first and in the beleif that i could not be defaulted for refusing to make further payments to a missold ppi policy which is what my balance is made up of, ppi charges plus default charges for not paying the misold ppi.

am i right on the above or did i make a !!!! up stopping payments?

Just thought i'd let you know they can default you whilst you refuse payment. It was allowed ever since McGuffick v RBS so you have absolutely NO recourse to argue this, unless of course the account was clearly put into dispute NOT regarding anything to do with CCA1974 (in relation to s.78 - CCA Request). I have told you similar in a previous thread mate - defaults are no big deal, you will always get defaulted if you attempt unenforceability. Why? Because the recent case law dictated so and therefore pointless fighting unless you want to lose.

Sorry but that is the way it is. Read the first page of my Unenforceability & Template Letters II thread and see the judgement from McGuffick - then you'll see what I mean! The lender / dca can default you. :mad:

Originally Posted by McGuffick v RBS
This case was a unique case in its entirety being that there were specific exclusions to the norm. In a nutshell, the Judgment clarified that a lender can report account conduct (i.e a default) to the CRA's even though the debt is unenforceable.This is not the last of this, more to follow as and when we get updates.

confused90

Hi never in doubt, thanks for your input i do value your opinion so thanks for taking a look.

I do however have to point out that my situation with barclaycard is not a frivoulous attempt at unenforceability and i have been in offical dispute with barclaycard for over 9 months regarding a series of serious concerns raised with them by myself which include:

• the amount of my balance relating entirely to charges for a ppi policy which was missold and i had requested be cancelled twice but which despite acknowledging my request to cancell barclaycard continued to charge for, resulting in my refusal to pay due to their falure to cancell on two seperate occasions.
• also i contest any suggestion that the account exists as i settled in full and shortly after barclaycard sent me written confirmation that my account had been closed, yet despite this continued to charge my bank account for the offending missold ppi policy and then apply late payment fees for not paying the missold ppi on the acount which had been settled in full and suposedly closed
• I raised my dispute formally through barclaycards internal complaints department and was told in no uncertain terms to pay up or get defaulted, in response i requested my cca in order to be furnished with a true copy of my agreement since barclaycard were quoting numerous terms of our agreemnt to which i had no access for my own referance, barclaycard failed to provide a true copy of my cca.

the above does not cover all of the case details but should demonstrate that this is not about unenforceability, i see no similarity between my case and mr mcgufficks case whatsoever having read the court transcripts as to my knowledge his case makes no reference to a balance made up entirely of premiums for a missold ppi policy, or that the account did not exist on the basis of have having been settled and subsequently closed by the creditor prior to their applying further charges.

My argument is this, i can't be in default for not paying missold ppi premiums on a policy which i had previously requested be cancelled on two seperate occasions on an account which was supossedly closed.

I don't expect due to the complexity of the issues for anyone here to be able to advise me fully on my course of action and i have consulted a solicitor but due to cost issues am trying to do as much as i can myself, the reclaim for the ppi premiums is ongoing but i'm sure to win as they have admitted i would not have been covered despite the fact i was told i would be at the time i took out the policy, (open and shut misselling).

the reclaim will wipe out any alleged balance but my problem is that i will still have a default, albeit showing as "settled" and so at this time i am trying to establish the best route of action to remove the default....at this time i am exploring the fact that i have disputed the very existance of an account and despite the burden of proof falling on the creditor to prove any debt they wish to enforce they refused on three seperate occasions in writing (letters retained on file) to provide any proof of existence of an account but defaulted me anyway for an account i contest does not even exist.

still think they were right to default me? i don't.

never-in-doubt

confused90 wrote: »

still think they were right to default me? i don't.

Hiya

I wasn't having a go mate - I was simply going on what was at hand, now you've explained it in that much detail i;d say you want to sort the PPi then go straight to the ombudsman (FOS) - let them deal with a compo claim for the hassle you've been through. They can also aithorise default removal...... regardless, you need to follow process which is sort out PPi, request FOS intervention being this is ongoing with no foreseeable end date and demand removal of unlawful default and remind them of s.87 & s.88 CCA(1974);

s.87 - Need for default notice

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,

(a) to terminate the agreement, or
(b) to demand earlier payment of any sum, or
(c) to recover possession of any goods or land, or
(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or
(e) to enforce any security.

(2) Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.

(3) The doing of an act by which a floating charge becomes fixed is not enforcement of a security.

(4) Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

s.88 - Contents and effect of default notice

(1) The default notice must be in the prescribed form and specify

(a) the nature of the alleged breach;
(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;
(c) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

(2) A date specified under subsection (1) must not be less than seven days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those seven days have elapsed.

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the seven days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it.

(5) A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

Subsequently, s.87(1) of the CCA1974 clearly states that a default notice must be served before the creditor or owner can become entitled, by reason of any breach by the debtor.

Good Luck :T:T

10past6

confused90 wrote: »

still think they were right to default me? i don't.

Have I understood your issue correctly?

You had an agreement with Barclaycard which included PPI

THAT agreement was eventually cancelled due to being miss sold PPI

The balance of THAT agreement was made up of PPI fees

Because you failed to pay any premiums on THAT agreement, they issued a default

Am I correct so far?

confused90

Thanks for the above N.I.D. i was considering the ombudsman route once the ppi reclaim was settled, my only concern being that they bottled out of making a decision in my case against close motor finance staing that it was "a legal argument which was beyond their powers of adjudication" i don't want to wait 12 months again to hear that.

that said this case is very different and so i may choose the ombudsman, i was just exploring whether or not there might me a quicker way of removing the default once the ppi claim is settled, i don't think they sent me any default notice prior to issuing the default, the last comunication i had was a demand for payment, no mention of a default, maybe i should scrutinise thier default notice, or lack of, as an option first? i'm not sure but i have had a final response from barclaycard and so can proceed straight to the F.O.S anytime.....i'll consider my options carefully, although the ombudsman is looking like a good route right now as whith the other issue i have ongoing with close i'm sick of the hassle and would be quite happy to leave this in someone elses hands......alot to think about right now but i appreciate the input from you and 10 past 6 as it helps open up my mind to different possible routes to take.

confused90

10past6 wrote: »

Have I understood your issue correctly?

You had an agreement with Barclaycard which included PPI

THAT agreement was eventually cancelled due to being miss sold PPI

The balance of THAT agreement was made up of PPI fees

Because you failed to pay any premiums on THAT agreement, they issued a default

Am I correct so far?

not quite, the agreement was cancelled after i did a balance transfer to another provider and barclaycard immediately sent me a "we no longer want to do business with you" letter telling me my account was closed.

that was fine by me as i had no intention of using the card again. however barclaycard continued to try to debit money from my account for the missold ppi policy i thought had long since been cancelled on the account they had supposedly closed. It is when i noticed this that i opened a dispute with them and it is because i subsequently refused to make any further payments in relation to this policy that i was eventually defaulted.

Edit: and so given that the balnce was paid in full and the account closed no further spending occured so the remaining balance is therefore 100% made up of ppi premiums and charges for not paying the premiums.

10past6

OK, if they've agreed the agreement with PPI was miss sold, that agreement needs cancelling, a new agreement needs to be set up excluding PPI, but including any balance from the previous agreement.

Once the new agreement is set up, if the remaining balance is only made up of PPI fees, these needs cancelling, making a zero balance.

Once that's been achieved, only then can you request the removal of any default notice issued.