Unenforceability & Template Letters III

handyman123_2

Hi all, Niddy I hope you are enjoying a few cool Stella's meanwhile this will bump Fred back where he rightly belongs.

Catch you later, Handyman123.:beer:

Locke

I've had a letter back from Barclaycard about the letter I sent them about all the phonecalls, NID.

I'll just copy it out so you can tell me what I should do next, this reply is to 14.4 - Legal Threat - Harassment by Telephone I sent.

. . . . .

I write further to your recent communications concerning your Barclaycard account.
Your correspondence has been forwarded to me in order that I may investigate and respond in my capacity as a Customer Service Manager.

I understand from your recent correspondence that you are unhappy with the ammount of telephone calls you have been receiving regarding your two Barclaycard accounts you have that are at present with Mercers debt collection service. Your letter advises that if the telephone calls continue you will take immediate legal action against Barclaycard.

Firstly, please accept my apologies for the delay in issuing a reply and any inconvenience this may have caused.

Your account has become overdue for payment, therefore in these circumstances Barclaycard needs to contact you to arrange recovery of the amounts owed and to attempt to help you resolve your financial position. We are unable to prevent telephone calls until a mutually acceptable arrangement has been reached.

Whilst your comments are noted, I do not agree that Barclaycard is in breach of any legislation or guidelines nor have we engaged in activity that can be considered to be harassment or criminal.

Our agents are trained to gather and understand information so that they can make decisions regarding your account, with the intention of helping you resolve any problems you may be experiencing.

Barclaycard's legal requirement under section 78 of the Consumer Credit Act 1974 is to provide you with a copy of your executed agreement along with a statement of your account. This information was provided to you on XX/XX/XXXX on your Visa and on the Mastercard account on XX/XX/XXXX. Therefore we have fulfilled our legal requirements under section 78 and will continue to pursue you for this debt until a suitable agreement has been reached.

I trust this information has been of assistance but I am obliged to tell you at this stage you do have the option to ask the Financial Ombudsman Service for investigation. For the purposes of the Financial Ombudsman Service you may regard this letter as our "Final Response" to your complaint.

. . . . .

So what do you think we should do with that, NID.:think:

EDIT- That's the first time they've mentioned that my accounts are with mercers.

never-in-doubt

Alpina wrote: »

Hi i recieved a letter form Wescot in reference to a debt i owed to Arrow Global Ltd. Having traced the ref numbers i found it to be a old Lloyds bank loan which i have been in default with for about 4 years.

I have had no corespondance from Lloyds or Arrow about selling the debt or demands for payment, the first i knew was the letter from Wescot demanding payment on behalf of Arrow Global.

With the above in mind i replyed to Wescot with a CCA request on 7th May, i recieved a response today 22nd May, dated 20th May, i dont have a scanner so shall type the content below......

...................................................................................................................

There you have it, what shall i do next??

Thanks in advance, Paul

Hiya

I think your mistake was writing to them, if you've had no contact in over 4 years you'd have been better sitting out the last 2 years before Statute Barred, your mistake here was getting in touch.

So if I were you i'd be ignoring them and pretending you never sent the CCA Request! But seriously, see what they send back and in the meantime do not acknowledge or reply to anything without running it past us, as you may be digging a deeper hole.

See what comes back - if they ring ignore them!

swanfan02

Hi Niddy, have sent you 2 emails regarding Morgan Stanley/Barclayshark cc. If you can take a look when you have time, no hurry mate they have already defaulted me!:eek:

never-in-doubt

Locke wrote: »

I've had a letter back from Barclaycard about the letter I sent them about all the phonecalls, NID.

Send this back matey - put both your account numbers on the letter, being they mention there are two accounts (with Mercers)

Dear Sirs,

Account No: XXXXXXXX & XXXXXXXX

I write with reference to your letter dated xx/xx/xxxx regards to the above two numbered accounts.

You claim in your letter that you are entitled to "pursue" me even though I have explicitly warned you that the frequency of calls is deemed to be harassing, notwithstanding the times and content of such calls. For your information all calls made to me are recorded and can and will be used against you in any litigation I may decide to pursue.

You then, rather amusingly, contradict yourself by claiming that you will continue to pursue me because the accounts are overdue, but maybe you're forgetting that both alleged accounts are actually unenforceable and remain so, until such time you come out of default (s.78 CCA1974) by complying fully with said Act.

I have requested a signed true copy of the original document, however this request remains outstanding. You seem to think that you have complied with your obligations, however we both know unless you actually provide me a copy of the original, you have no recourse to consider legal action as s.127(3) and s.65(1) of the CCA rightly suggests. The fact that you feel satisfied with the outcome, does not make it correct and I am sorry to say that until you come out of default then yes, you are in direct breach of various Acts none moreso than The Protection from Harassment Act (1970) and the recently updated OFT Guidance on Debt Collection (12/2006).

The OFT guidance clearly states what is and what is not acceptable. To reiterate, the OFT practices that I deem you to be continually breaching, amoungs others, include;

The unfair practices, carried out by Barclaycard and their agents (Mercers etc) are as follows:

2.2
f. Contacting debtors at unreasonable times
g. Ignoring or disregarding debtors' legitimate wishes in respect of when and where to contact them, for example, shift workers who ask not to be telephoned during certain times of the day

2.4
b. Falsely implying or stating that action can or will be taken when it legally cannot
e. Falsely implying or stating that failure to pay a debt is a criminal offence or that criminal proceedings will be brought

2.6
a. Contacting debtors at unreasonable times and at unreasonable intervals
c. Using more than one debt collection business at the same time resulting in repetitive and/or frequent contact by different parties
d. Not ensuring that an adequate history of the debt is passed on as appropriate resulting in repetitive and/or frequent contact by different parties
e. Not informing the debtor when their case has been passed on to a different debt collector
f. Pressurising debtors to pay in full, in unreasonably large instalments, or to increase payments when they are unable to do so
g. Making threatening statements or gestures
h. Ignoring and /or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

2.8
i. Failing to investigate and/or provide details as appropriate, when a debt is queried or disputed, possibly resulting in debtors being wrongly pursued
k. Not ceasing collection activity whilst investigating a reasonably queried or disputed debt

As you can clearly see from the above list, it is not one single thing you've messed up on here, it is a whole host of things. I have only bothered to quote the OFT Guidance - imagine when I start on the CCA1974 breaches & the Protection from Harassment Act breaches? Do you still think that you have the right to annoy me at your free-will? I certainly do not and fortunately for me, current UK law agrees.

For the last time, I formally demand that this action ceases with immediate effect and that you remove all telephone numbers you have on file against the alleged accounts noted above. You are fine to send letters, which as you can see, do get responded to; it is your pig ignorance of s.78 that confuses matters because you think you are right whereas I know you are wrong and know that the CCA1974 protects me against such outrageous claims.

I have asked on several occasions now, for you to send me a signed copy of the original agreement. You have failed to do so. Need I remind you of provision s.127(3) of the Consumer Credit Act 1974?

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

As is clear from the above, and previous correspondence between us, without the original signed agreement encompassing the prescribed terms, this account is lawfully deemed unenforceable and no formal action can be taken so long as this remains the case. Please do not waste my, or your time by fighting this lost cause any longer. Unless you can satisfy my s.78 request in full by providing me a copy of the alleged original "compliant" agreement, then I have nothing left to say to you.

As the account is clearly unenforceable, I expect you to write back and confirm that no further action will be taken and that the account is now closed and no further correspondence will take place; irrespective, unless you do supply a copy of the original agreement I will not correspond with you again. Any threats will be averred and unlawful and vexatious with a counter-claim forthcoming.

Yours faithfully

Sign digitally

never-in-doubt

swanfan02 wrote: »

Hi Niddy, have sent you 2 emails regarding Morgan Stanley/Barclayshark cc. If you can take a look when you have time, no hurry mate they have already defaulted me!:eek:

No prescribed terms linked to the original application matey = unenforceable.

Yea, they have attached some random terms, but now look again - more closely to the two pages:

Page 1 - the reference down the right hand side looks like: 119694076 but on Page 2, at the top left corner you see a number 4 (page number) and a reference similar to C/1570601/RL - these are clearly different terms to those that came with the application. Out of interest, where are pages 2 & 3 and where is the links to the terms that mention part 16 (as defined on the siggy page?).... have you seen/got these missing pages?

You should respond with this: CCA Query

swanfan02

never-in-doubt wrote: »

No prescribed terms linked to the original application matey = unenforceable.

Yea, they have attached some random terms, but now look again - more closely to the two pages:

Page 1 - the reference down the right hand side looks like: 119694076 but on Page 2, at the top left corner you see a number 4 (page number) and a reference similar to C/1570601/RL - these are clearly different terms to those that came with the application. Out of interest, where are pages 2 & 3 and where is the links to the terms that mention part 16 (as defined on the siggy page?).... have you seen/got these missing pages?

You should respond with this: CCA Query

Thanks Niddy, thought it was unenforceable, but wanted your expert opinion. Apart from the standard barclayshark letter, which you posted on this thread somewhere?:o the 2 pages that i emailed you was all that was sent, if you think it will help others you can post it on here so they can see for themselves.:D

never-in-doubt

swanfan02 wrote: »

Thanks Niddy, thought it was unenforceable, but wanted your expert opinion. Apart from the standard barclayshark letter, which you posted on this thread somewhere?:o the 2 pages that i emailed you was all that was sent, if you think it will help others you can post it on here so they can see for themselves.:D

Hi matey

Best keep it private cos there is too much info available on there - easy to locate you! :rotfl: :rotfl:

Seriosuly though, I tend to prefer agreements not being on here - just in case, you never know who is looking!

swanfan02

never-in-doubt wrote: »

No prescribed terms linked to the original application matey = unenforceable.

Yea, they have attached some random terms, but now look again - more closely to the two pages:

Page 1 - the reference down the right hand side looks like: 119694076 but on Page 2, at the top left corner you see a number 4 (page number) and a reference similar to C/1570601/RL - these are clearly different terms to those that came with the application. Out of interest, where are pages 2 & 3 and where is the links to the terms that mention part 16 (as defined on the siggy page?).... have you seen/got these missing pages?

You should respond with this: CCA Query

Hi again Niddy, i am presuming i send above to barclayshark, as they sent letter/app form. Do i send anything to the DCA, Robbersway(robinson)?

never-in-doubt

swanfan02 wrote: »

Hi again Niddy, i am presuming i send above to barclayshark, as they sent letter/app form. Do i send anything to the DCA, Robbersway(robinson)?

Hmmmm, now let me check and see where I mention to send it to Robinson...... :think::think::think:

Ahh that's right, I never did I? So yea mate, you presume correctly lol :rotfl: