Barclaycard recorded default 12 months after issuing default notice.

[d_mcl85]

Good morning,

I am new here and hoping someone can confirm or negate what I have been told by Barclaycard in relation to a default recorded.

Due to a change in personal circumstances I started missing payments on a Barclaycard Card in May 2013. I set up a Debt Management Plan with Step Change at this time. Barclaycard issued me with a default notice in August 2013.

I have recently checked my credit report expecting the default to have dropped off last year to find that it is being reported until July 2020.

The record is showing the usual 1-5 arrears markers from May - Oct 13 then from Nov 13 to May 14 the record shows recurring 6 numbers, in June 14 a default was recorded then July the account was satisfied when it was passed to PRA Group who have also recorded the default as July 14.

I raised a complaint with Barclaycard who contacted me yesterday to say that as they didnt accept the payment offered by Step Change which is why they didnt default the account sooner eventhough they issued me the default notice in Aug 2013.

I am trying to establish if they within their right to not record the default until June 14 after reporting arrears for the previous 12 months.

Many thanks

Debbie

[Never-In-Doubt]

Hiya

Read this for info too -> https://all-about-debt.co.uk/forum/d...87-s88-cca1974

In a nutshell, you said - "The record is showing the usual 1-5 arrears markers from May - Oct 13 then from Nov 13 to May 14 the record shows recurring 6 numbers, in June 14 a default was recorded then July the account was satisfied when it was passed to PRA Group who have also recorded the default as July 14."

So because you applied for DMP the creditor does not need to formally default it with the CRA. The reason being, and why we at AAD always say never do a DMP before defaulting, is because the lender has a horrible habit of adding status 6's instead of a default, based on the fact you are in arrears and are not making the contractual payment - therefore, because they're going to accept your DMP they can leave trailing 6's. This is awful and wrong; so we always say to people to get defaulted then consider a DMP.

Sadly, nothing you can do - it all seems right. They basically didn't default you for a few months pending the DMP but when this failed, they did so at the earliest opportunity.

I'd not worry, you only have 6 months left and then it'll be gone.

[d_mcl85]

Thank you for your response.

I contacted Step Change who informed me that they were never advised that the payment was rejected so I rang Barclaycard back to find out when they rejected the proposal. They admitted that they should have recorded the default as Sept 13 not July 14 and they are going to amend their records and update my credit file so it should come off in the next 4-6 weeks.

[Joanna Connolly Solicitors]

I rang Barclaycard back to find out when they rejected the proposal. They admitted that they should have recorded the default as Sept 13 not July 14 and they are going to amend their records and update my credit file so it should come off in the next 4-6 weeks.

You seem to have got a good result on the default date issue from Barclaycard.

The debt is now owned by PRA but are you still paying that through StepChange or have you looked into whether the credit agreement is 'unenforceable'?

If you have other debts this forum can help you establish your legal position with those too, so you can consider all your options.

Di

[Warwick65]

It is such a shame as the old ICO guidelines used to say if they knew or suspected you were in difficulties they should record a default. One such thing was being in a DMP- sadly no more.

I got caught out a few years ago. It was a small debt and my DMP were actually paying the minimum payment of about £5 . They did not default the account until I went down to £1 a month. They then sent a letter of claim at the same time as I found my feet. I sent a CCA request, they could not honour it and I have heard nothing since.

[d_mcl85]

Hi Di,

Thank you for posting in response to my query.

Yes, it was a good result from Barclaycard, I just need to keep a check on my credit record now to make sure it is updated as promised. They are going to write to me too so hopefully that letter will confirm the agreed action.

I am still paying it through a Debt Management Plan.to PRA Group. When you say unenforceable do you mean requesting a copy of the CCA and see if they can provide it? I had been researching that last night but I'm concerned that if i do that and they provide it they may then look to go to court for a CCJ. Is this likely if I continue to pay the DMP?

Thanks

Debbie

[Joanna Connolly Solicitors]

Hi Di,

I am still paying it through a Debt Management Plan.to PRA Group. When you say unenforceable do you mean requesting a copy of the CCA and see if they can provide it? I had been researching that last night but I'm concerned that if i do that and they provide it they may then look to go to court for a CCJ.

Yes I do mean sending PRA (and probably all the others in your DMP) a s77-79 CCA Request so you can see what may be unenforceable.

The debt owner hasn't just got to provide the credit agreement, they have to produce a compliant credit agreement if they want to succeed in court.

PRA took me to court and lost because the two signed credit agreements they produced were deemed irredeemably unenforceable by the Judge.

Jo explains this here >

‘“RECONSTITUTED AGREEMENT” – IRREDEEMABLY UNENFORCEABLE”
“UNREDACTED DEEDS OF ASSIGNMENT – NO ASSIGMENT PROVED”


So, held Recorder Bellamy in PRA Group (UK) Limited v Mayhew at Central London County Court on 22nd March 2017, at the end of a 3 day multi track trial, when dismissing PRA’s claim against our client.


Stale debts sued for on the back of 2 ‘reconstituted’ MBNA credit card agreements (May 1999 and October 2000) were held irredeemably unenforceable under CCA 1974. The evidence of an honest witness was preferred to that of so called “reconstituted agreements”.


After 3 days of close forensic examination of, and legal argument about, evidence and documents from both PRA and MBNA stating that our client’s specific debt had been assigned, the court held that no assignment had been proved.


Efforts, over many months, in earlier cases to force PRA into disclosure of un-redacted deeds and deep and sustained forensic challenge to the provenance of documents needed to prove regulatory compliance, finally drew back the veil. The reality behind bulk debt purchasing was revealed.


This decision shows that just saying an agreement is enforceable and producing a “reconstituted” copy does not prove that it is enforceable. Just saying an agreement has been assigned and producing a notice saying it has been assigned does not prove legal assignment.


Debt purchasers need to provide proof. If that means the pitifully few pence in the pound they pay for stale debts will increase because banks will now have to start keeping original evidence complying with regulatory consumer protection measures, it is hard to imagine many tears being shed, outside the City of London.

I can't advise you whether you should stop paying but I can help you to establish your legal position so you can make up your own mind

Di

[d_mcl85]

Good afternoon Di,

That is really useful, thank you for sharing that. Excellent result, well done for fighting them all the way.

I have two Barclaycards, both of which I'm paying PRA Group to now through a DMP. They were taken out in 2007 and 2012 and both passed over to PRA Group around 2013/2014.

I do have other debts in the DMP so I will get a CCA request sent off this week.

I will continue to make the payments to my DMP, my concern is if they produce enforceable agreements, are they likely to commence court proceedings even if I continue to make the repayments through the DMP?

Regards

Debbie

[Joanna Connolly Solicitors]

I have two Barclaycards, both of which I'm paying PRA Group to now through a DMP. They were taken out in 2007 and 2012 and both passed over to PRA Group around 2013/2014.

I do have other debtsin the DMP so I will get a CCA request sent off this week.

I will continue to make the payments to my DMP, my concern is if they produce enforceable agreements, are they likely to commence court proceedings even if I continue to make the repayments through the DMP?

I think first you need to establish whether any agreements produced are unenforceable by sending them to Niddy (the forum owner) when (if!) they arrive.

Do a separate post for each debt on this thread so helpful suggestions can be made each step of the way, by members who've been through the process.

There's also more to unenforceability than just a compliant credit agreement. There can be assignment issues and all sorts of other failures to comply with their statutory duties under the CCA.

I can't really answer your question about whether they will commence court proceedings if they produce enforceable agreements. But I can say with some certainty that they commence legal proceedings even when they have unenforceable agreements, which is one reason why PRA lost their claim against me

Di

[d_mcl85]

Hello, I have my CCA requests ready to go. Two to PRA Group, Two to Cabot Financial and One to Moorcroft Debt Recovery.
Do I send the £1 postal orders crossed or uncrossed and do I put the company name on them or leave blank? Theres a lot of conflicting information other websites.
The only one I havent done yet as not sure where i stand is one to Wescot Credit Services for an overdraft on a Santander bank account. I am not sure where i stand with a CCA request for an overdraft and also not sure if the request should be made to Wescott or Santander in that instance as I dont know if the debt is just being collected by Wescott for Santander or if Wescott own the debt.
On my DMP with payplan it is Wescott I'm paying but the product name is noted as Wescot Santander Accounts.

Thanks in advance.

[d_mcl85]

Also since opening the accounts I have changed surname so should the letters be sent from me as I am known now or known at the time the accounts were opened? My DMP is in my current name but I'm not sure what name the companies will be using on their records.

[Joanna Connolly Solicitors]

I have my CCA requests ready to go. Two to PRA Group, Two to Cabot Financial and One to Moorcroft Debt Recovery.

The only one I havent done yet as not sure where i stand is one to Wescot Credit Services for an overdraft on a Santander bank account. I am not sure where i stand with a CCA request for an overdraft and also not sure if the request should be made to Wescott or Santander in that instance as I dont know if the debt is just being collected by Wescott for Santander or if Wescott own the debt.
On my DMP with payplan it is Wescott I'm paying but the product name is noted as Wescot Santander Accounts.

It's important to get this set up correctly so ask as many questions as you like. We like questions

I ask questions too, so who is the the owner of the debt which is using Moorcroft as their Debt Collection Agent?

The CCA Request should be sent to the debt owner by Royal Mail Recorded Delivery so you can Track & Trace (and screenshot/print!) proof of posting/delivery. Each CCA Request is sent in a separate envelope even if the debt owner has more than one of your accounts, such as PRA and Cabot.

Overdrafts are regulated by s78 CCA so send the forum template for that one too. You'll probably get a response from Santander to say they're not, but they may not be aware that a Judge in recent court ruling says they are as Jo explains here >

The claim against our clients in this case was for monies owing under a personal Current Account Overdraft. We lost at first instance before a District Judge in Peterborough County Court and appealed the decision before HHJ Walden-Smith sitting at Cambridge County Court.

The Appeal was successful yesterday. This is an important case because it confirms that consumers using the unenforceability provisions of the Consumer Credit Act 1974 can successfully defend claims for personal Current Account Overdrafts in court. In this instant case the Appeal court found the personal Current Account Overdraft agreement to be unenforceable pursuant to the Consumer Credit Act because of lack of evidence of compliance with the requirements of the OFT determination.

It was also accepted that Creditors must comply with S 78 Consumer Credit Act 1974 requests relating to personal Current Account Overdrafts, not just credit cards and loans. In this case the Appeal court did find that MFS Portfolio Ltd had complied with the S 78 Consumer Credit Act request. If they hadn’t complied with the statutory request then the personal Current Account Overdraft would have been unenforceable pursuant to s.78 (6) (a) Consumer Credit Act , which is contrary to the position creditors normally take.

The court also positively approved of the principle established in a European case ruling we put before the court that it is for the creditor to prove statutory compliance. The court did not appeove of the District Judge’s earlier decision in the lower court that our client not recalling something somehow reversed the burden of proof onto our clients and away from the Claimant.

Someone else will be along shortly to answer your other questions.

Di

[The Tech Clerk]

For Info Only:-

Can I be tracked if I change my name?

Yes you can be traced if you change it by deed poll. All deed polls are published in The Gazette, an arcane publication of official 'stuff' this is then used by various govt and private organisations to update their records. It is a public document. But most lay people would not know how to go about doing this.

CRA up dates can take months so expect old name on some, at the end of the day any outstanding aledged debt are active and most CRA information and companies who update will know, and in the future some if not all applications for credit will ask if you have changed name etc?

[Joanna Connolly Solicitors]

Also since opening the accounts I have changed surname so should the letters be sent from me as I am known now or known at the time the accounts were opened? My DMP is in my current name but I'm not sure what name the companies will be using on their records.

Send the CCA Requests using your current name.

Ideally you don't want them to find your credit agreement because if they can't/don't comply with your CCA Request within the statutory time-frame the debt becomes unenforceable unless or until they do produce a compliant credit agreement.

Don't give them any clues.

If they subsequently produce a credit agreement with your current name on it (i.e. not the name you were using when the account was opened) then that reconstituted document would be 'inaccurate' or possibly 'fake'.

I hope that makes sense

Di

[d_mcl85]

Thank you for clarifying the name query, makes sense.

It is a Halifax unsecured bank loan I took out around 2010 that is being collected by Moorcroft. Does this mean I send the CCA request to Moorcroft Group PLC or Halifax?

Re the Santander overdraft CCA request do I send that to Santander rather than Wescot?

Final query for now, I cant access the forum templates so I've used one I came across on an internet search.
Can someone advise how I can access the templates on here please as I'd prefer to use these ones.

Thank you