CCA Request Barclaycard/MKDP

Legacy_user

Hi All,

Can you please advise me on the response I received from MKDP...

I knowingly have one Barclaycard account that went to a DCA and I have received paperwork on it a while back.

I am now having a 2nd DCA claiming I have a Barclaycard/Goldfish account that I do not know about.

I have received today a reconstituted agreement and such and a reply from Barclaycard saying while they cannot enforce the agreement they can take steps to recover it and mention a few court cases as follows...

Philip McGuffick V RBS 2009 and Carey V HSBC 2009

Now, what does this all mean? this agreement was pre April 2007 and I really have no idea where I stand?

I was under the assumption that because there is no signed agreement with the APR and Limit stated then I am not obliged to make repayments until this is provided?

Many thanks
AGDCFF

rizla_king

AGDCFF wrote: »

a reply from Barclaycard saying while they cannot enforce the agreement they can take steps to recover it and mention a few court cases as follows...

Philip McGuffick V RBS 2009 and Carey V HSBC 2009

Means they know they are well and truly screwed. They cant enforce in court so can only hope to get you to pay by putting a default on your file and sending what are basically dressed up begging letters. You can tell them where to stick that! Why did you do a £1 cca request if you didnt recognise the debt? Should have just sent a letter like this one. https://www.nationaldebtline.org/EW/sampleletters/sole-letters/Pages/Complaining-to-debt-collection-agencies-that-you-do-not-owe-the-debt-%28sole-name%29.aspx

System

Thanks for the reply

I did the request through total ignorance to be honest!

So, moving forward what do I actually do? is there a response letter I can send or do I just do nothing?

Looking at the letter in the link could I now send that or have I messed up by sending in a CCA request?

Many thanks
AGDCFF

rizla_king

Do you now believe it was your card? Really depends on the answer to that question.

rizla_king

Should have sent something like this https://forums.moneysavingexpert.com/discussion/2607247

Reason being

IMPORTANT.

Also please note that if you are unsure that the debt being chasing is valid or yours, then use the letter above.

Please do not be tempted to send a request (CCA request) under s77-79 of the Consumer Credit Act 1974 requesting copies of the credit agreement.

(1) If you want them to prove your liability for the debt then the above is all you need. Quote other Acts etc and you complicate what is a simple matter.

i.e. They have to prove you are liable for the debt. If they can't or won't, they are obliged to stop chasing you.

(2) Not all debts are covered by the CCA1974 or required to have credit agreements. e.g. mobile phone accounts, overdrafts, utilities etc etc......

Requesting a CCA under the act in those cases is a complete nonsense, and will most likely result in your request being ignored, refused or brushed off.

(3) Only the actual debtor is entitled to make a s77-79 request for a regulated debt. If you think you are not the debtor, then you do not have the right to make the request in the first place.

Just require them to prove the debt without. The above letter is all you need.

(4) A s77-79 request does not have to provide a signed copy of the agreement. So if you are looking to use it to prove whether you took out the debt or not or signed an agreement, then you may be wasting your time.

It is not a good tool for proof of debt. It was never intended for that purpose.

(5) And not least, s77-79 requests are often used when someone is disputing the enforceability of a debt, rather than disputing it outright. Because of that, rightly or wrongly, debt collectors tend to take an adversarial view when receiving such requests and often jump to the conclusion that you do actually owe the debt, but are simply trying to avoid payment. This then backs you into a corner that can then be hard to extract yourself from, when in truth you actually wanted to dispute that the debt was ever yours.

The above is not saying the s77-79 request do not have their place and uses. They do. But when you have a fundamental dispute over whether you owe a debt, they are to be avoided, at least as the first avenue to take.

Most importantly requesting a CCA is NOT a way to remove a default. The High Court has ruled on this, and you will just make more hassle for yourself and make things harder.

System

They have proved nothing sending what they have to me.

I knowingly have only had one account with Barclaycard.

What if it is another account that has been taken over by Barclaycard?

Either way I am where I am now... what would be by next move?

rizla_king

AGDCFF wrote: »

What if it is another account that has been taken over by Barclaycard?

They took over some goldfish and morgan stanley one at least I think. Could try sending the proper letter apologising that the other one was sent in error. Have you checked your credit files to see if this unknown debt is on there? If me that would be the main thing I would want to sort if not my debt as its already been admitted they cant enforce this one in court.

System

Would I put a covering letter in to accompany the other letter?

I did speak to them on the phone initially and they said that the account defaulted in 2008 then in 2011, I thought an account could only default once? it is on the CRA and has a default date of 2011

Also, just noticed that the letter from Barclays that the DCA has sent me pre dated my actual request?

In general what do I do if an agreement is unenforceable?

Many thanks
AGDCFF

sourcrates

When an agreement is unenforceable, that means the creditor is unable to obtain a CCJ against you, should they take you to court.

The reason being, they do not hold the correct paperwork for the account, its all very well them saying you owe x amount of money, but the law requires a little bit more evidence than word of mouth.

They can still write to you, asking for payment, they can still record the account as defaulted, but that`s all they can do.

Usually, once admitted an account is dodgy, and you tell them your not paying, it starts to go on the debt merry go round, ie, it gets sold on to another DCA, and you have to go through the process again with them, this happened to me 12 times with one debt !!!.
But a simple letter stating the account is unenforceable, and providing a copy of the letter from BC, should suffice, but then be prepared for the next round, this could continue for some time.

Not a lot else you can do, you just keep advising whoever writes to you, that you are aware the debt cannot be enforced, and telling them to go away basically.

System

Thanks for the reply

I am slightly confused by you advising to send a copy of the letter from Barclaycard to the DCA as it was the DCA that sent me the letter from Barclaycard in the first place?

The part that states it is unenforceable reads as follows:

'We are currently unable to provide a copy of the credit agreement you entered into. We accept that we are therefore prevented from enforcing our agreement with you while this state of affairs continues.

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 take action short of enforcement, which includes reporting to credit reference agencies without 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 Phillip McGuffick v RBS (2009) EWHN 2386 in which it was held that none of these steps constituted "enforcement" for this purpose.

Please note that the decision in Carey v 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 we have not currently complied with section 78 of the act. To the extent that you seek to allege that an unfair relationship has arisen, such allegations will be opposed'

So what kind of letter do I send to tell them nicely to go away?

Thanks again
AGDCFF