Barclaycard & Right of Set Off

[Enforcer]

Re: Barclaycard & Right of Set Off

The default notices were both for different amounts.
The Roman numeral for 1 is I not i.
They would have to apply to the court to rectify the fact that they did not sign the agreement. S 65 I believe.
She has also failed to address the fact that this document contained the wording.
when we consider your application. Prospective regulated agreement. See Judge Wacksman.

[oscar]

Re: Barclaycard & Right of Set Off

The default notices were both for different amounts.
The Roman numeral for 1 is I not i.
They would have to apply to the court to rectify the fact that they did not sign the agreement. S 65 I believe.
She has also failed to address the fact that this document contained the wording.
when we consider your application. Prospective regulated agreement. See Judge Wacksman.

Your missing the point.

I could default NOW, and pay the default. I could then default next year and have another default notice. It IS possible, as GA stated to have more than one default. You just cant be defaulted more than once - thats a different kettle of fish.

Whether its I, i or 1 makes no difference. Its horses for courses. the next number / item will obviously be II, ii or 2. So long as they are consistent throughout, I dont see how anyone can justify this as an arguement to their case.

You are correct in Sec 65 - but Sec 78 DOESNT need to have a signature as it can be a recon - for all you know, the original may well have the signature.

An application, in some cases can still be regarded as an agreement - all depends on what you were sent at the time.

[Enforcer]

Re: Barclaycard & Right of Set Off

Went to bed but couldn't sleep.
Notes.

Barclaycard have now changed the regulations regarding CCA 1974
You can now substitute the Roman letter i for the numeral 1 in all of the Statutory Instruments.

You no longer need to sign any documents, as a bar code is now clearly acceptable.

Judge Wacksman in the case of HSBC vs Carey clearly got his judgement wrong when he stated that a prospective regulated agreement was unexecuted.

A creditor does not have to comply with a section 78 request if they have previously sent one.

Paul may as well start looking for another job, as Barclaycard are always right.

We must now agree to pay everyone who says we owe them money.

[Never-In-Doubt]

Re: Barclaycard & Right of Set Off

You advised that only one default notice may be applied to an account, I must advise that this is incorrect and there is no legal bar on sending out more than one default notice to a customer at different times.

Your point was still correct. There can only be one default per account, ie you cannot have multiple Defaults registered for the same debt. That said the bank/lender can if they like send 100 default notices throughout the lifecycle of an account however you can only be formally defaulted, in line with s.87 & s.88 once.

You claim that the default notices issued to you were defective as the default notice was served under section 87 (i) as opposed to section 87 (1). May I explain that the i signifies roman numerals and as such indicates a number 1. I am therefore, unable to agree with your claim.

There is no Act entitled s.87(i) and if they issued a DN with that as part of the cover text then the DN should be defective as there is NO legislative guidance for any UK laws or acts that mention the letter *i* within s.87. Certainly not with respect to the CCA1974 which is what you're relying on.

You queried how the formal demand for payment sent to you on 1 August 2011, can be compliant when you had not received a default notice that complies with Section 88 (1). I can confirm that the default notices issued to you on 26 December 2012 and 30 March 2012, fully comply with Section 88 (1). (note she should have said Dec 2011)

Ok, that's fair point. If they issued the DN's then that would agree that you fell into arrears and they formally requested repayment, ie a default notice was issued.

You have advised on a number of occasions that you did not ask for the Section 78 request in 2011. If I may explain, when you wrote to us you made several references to the credit agreement under CCA 1974, which we must treat as a section 78 request, as this is the section of CCA 1974 which gives a customer the right to a copy of the executed agreement.

If you did not directly request a CCA under s.78 (CCA1974) and pay £1 then you have never actually requested it. Irrespective of their internal policy, you are free to request as many CCA's as you like so long as one month has passed between the last one. This is part of s.78 and the bank have no say in matters - if you request it and are happy to keep paying £1 then they MUST keep resending it. Failure means a FOS complaint needs to be sent in with explicit instruction that the bank needs to adhere to legislative guidance, in particular s.78 (1). The bank are trying to hide behind subsection 3 (a & b) but that would ONLY be applicable if there was a £0 balance or no monies owed. As you owe money then you are permitted to apply for a s.78 every 30 days if you want.

If a complaint is raised relating to a section 78 request, once we have fully complied and a final response has been issued, we would not action this request again. This matter was dealt with previously under complaint reference ---- hence, we are satisfied that we have met the requirements imposed by Section 78 of the CCA 1974 and we are under no obligation to provide you with any further documentation or information.

It doesn't matter what they'd usually do or not. The legislation is there for them to adhere to, not make opinion on. Yes they have previously satisfied your request, but you've made another since so they must comply, again and continue to do so until there is no balance outstanding.

It is clear from the copy of your agreement that there are signs indicating our acceptance of your application, this is shown in the references added and the bar code attached, which confirm our acceptance and subsequent processing of your agreement.
(they obviously do not believe that they have to sign the agreement!)

That doesn't make it compliant. It is clear that for it to be executed there should be your signature and the banks signature present. Of course you'd never take that sole argument into court but that's the premise we work to...

Whether you had and used the account matters little. Ask planB - she admitted in court to the judge that she enjoyed spending lavishly on her Harrods storecard but that wasn't the point. The point was the paperwork was wrong, hence she won and the bank lost regardless that she enjoyed the privileges of the account.

* that isn't a dig at planB - far from it. It's to prove a point that spending on the account does not matter - you're not arguing ownership you're arguing the terms within the agreement itself.

In addition the Terms and Conditions, including the prescribed terms would have been on the reverse of the page at the time it was signed.

Would have been? Prove it then.... simples. Would have been matters little in court, they will need convincing of this, so where is the proof?

Comments please.

I think this girl speaks shyte - utter shyte!!! See my comments in red, below her main points!

[Never-In-Doubt]

Re: Barclaycard & Right of Set Off

Whether its I, i or 1 makes no difference. Its horses for courses. the next number / item will obviously be II, ii or 2. So long as they are consistent throughout, I dont see how anyone can justify this as an arguement to their case.

Not at all mate. It's everything, nothing to do with horses for courses. You go find me something that relates to s.87(i). You can't thus the DN would be defective.

It is not valid when they have changed the main terms making it impossible for you to even investigate and argue it....

The Act states it is s.87(1) for a reason. It isn't s.87(i) so they cannot call it that. It's defective, surely?

Put this way, if you write to the bank and ask for your agreement under s.788 of the CCR(1974) - will the bank respond with the agreement or will they respond saying "sorry we do not recognise your request"...? You tell me how they'd play it? So what works for them, works for us too

[Enforcer]

Re: Barclaycard & Right of Set Off

In the letter from Gemma Anderton at Barclaycard, she states.

You have stated that if we do not comply with the above, you would like to receive a final response so that you can refer this matter to the FOS. As you are aware, the Financial Ombudsman Service have given their final decision on your case under our reference ----- and their reference ------. I can confirm therefore, that I will not be re-issuing FOS rights to you in respect of this matter.

I am aware that you have approached the FOS further and we have been contacted regarding your complaint that we have failed to provide you with a true copy of your executed agreement. This complaint was dealt with previously under reference ------ and a final response letter was issued to you on 12 September 2011, therefore the 6 month timescale which allowed you to take this matter to the FOS elapsed in March 2012. I have contacted the FOS to make them aware of this and am currently awaiting further instruction. This matter was also dealt with as part of this complaint, for which the FOS ruled in our favour. Please await further written communication from the FOS or ourselves regarding this matter.

Then.
Got home tonight. Letter from FOS.
your complaint about Barclays Bank Plc (trading as Barclaycard)

I refer to the Financial Ombudsman Service most recent letters quoting references ----- and ----.

It has come to light that these are duplicate cases. After checking, it appears the issues surrounding the firm providing you with a copy of the agreement were considered by our Ombudsman (Elizabeth Dawes) under reference-----.

I am afraid we therefore cannot re-consider the same issues as an Ombudsman's decision is the final stage of our process. If you reject an Ombudsman's decision you still have the option of taking the matter through court, in which case I would suggest seeking independent legal advice on the matter.

Please disregard the reference number -----, should you have any questions please contact us.


So Barclaycard can decide whether to issue me with rights to go to the Ombudsman!

I simply told the Ombudsman that the agreement was "improperly executed" and a prospective regulated agreement, not showing or referring to the prescribed terms. I even sent a copy of the so called agreement to the Ombudsman.
Their reply was that they had no remit over the enforceability of agreements.

This is a different complaint. Do Barclays actually "own" the Ombudsman service?

Can anyone advise me who to complain to regarding both Barclaycards actions and the FOS?

[oscar]

Re: Barclaycard & Right of Set Off

You go find me something that relates to s.87(i).


The Act states it is s.87(1) for a reason. It isn't s.87(i) so they cannot call it that. It's defective, surely?

I like a challenge!

Fair point - I am not as au fait as some others, and certainly not as much as you! Lets just say that ordinarily, it matters little (in general life)

[Enforcer]

Re: Barclaycard & Right of Set Off

My reply to Gemma Anderton Barclaycard.

I have today received a letter from the Financial Ombudsman Service, this obviously comes as per your statement that I have contacted the FOS to make them aware of this and am currently awaiting further instruction.

You do quite clearly not understand that this is a totally different complaint.

My previous complaint was did Barclaycard have a right of set-off. Yes I included my feelings that the agreement was "unenforceable" but this complaint is entirely separate.

You are refusing to supply a copy of my "executed agreement".

Please look at the Regulatory legislation. As long as you consider me to be a debtor you have a duty to comply with my request. I enclose a copy of the regulations for the avoidance of doubt.

I am within my rights to apply for a section 78 request. I can make a request every month if I wish to, see section 78 (3) (b).

In your letter dated 16th April 2013. (Copy to the Ombudsman) you have stated that you consider a "bar code" as a suitable replacement for a signature. You did not address my concerns over the terms "when we consider your application" as a prospective regulated agreement as per Judge Wacksman. You have also stated that the prescribed terms are on the rear of my signature page.

You further state that "We deem your credit agreement to be fully compliant and any allegations that it is not will be opposed.

You have obviously performed "due diligence" in your investigation of my concerns.

Your investigation of this matter has obviously concluded that your agreement is in fact fully compliant.

Why do you not wish to send me a copy of my "executed agreement" signed by yourself?

Surely this is a straight forward matter? You have a fully compliant agreement. Send me a copy as the regulations require, with your signature please.


Copy to Financial Ombudsman with covering letter.

[Enforcer]

Re: Barclaycard & Right of Set Off

Checked out Goodman v J Eban (1954) 1 QB 550.

This case refers to the use of a "rubber stamp" as an acceptable form of signature.

The bar code that was stuck onto my application form simply shows my name, it does not have Barclays name on it.

No way that this could be described as a signature.

[Never-In-Doubt]

Re: Barclaycard & Right of Set Off

Checked out Goodman v J Eban (1954) 1 QB 550.

This case refers to the use of a "rubber stamp" as an acceptable form of signature.

The bar code that was stuck onto my application form simply shows my name, it does not have Barclays name on it.

No way that this could be described as a signature.

We discussed this on the other thread with Paul yesterday mate, did you see that....?

[Enforcer]

Re: Barclaycard & Right of Set Off

Yes I did thanks Niidy, have since spent hours looking at loads of case law, and use of seals, stamps and digital signatures.

Barclaycard are clearly clutching at straws now.

Another interesting point. I am now looking at a brand new, Return this form by 10 June 2013. Application form for a Barclaycard. On the front page is a section for Authorised Barclaycard Signatory. Yes, a (SIGNATORY BOX). Not one on my application! It simply says for and on behalf of Barclays Bank PLC.
The reverse page contains the prescribed terms.
Section 16.3 (their security for using a right of set off) is NOT mentioned on this document.
Then at the bottom, Your agreement
By signing this agreement you confirm that:
You agree to the Barclaycard Conditions (set out in full in the accompanying booklet)

I was given this form to sign it was filled in at Barclays Bank by a member of staff, on their premises, how could I have been made aware at the time of signature of S16.3?

I believe that the Terms and Conditions were actually sent to me with the card.

[Never-In-Doubt]

Re: Barclaycard & Right of Set Off

I believe that the Terms and Conditions were actually sent to me with the card.

Correct mate, Barclays issue terms with the card and their booklet.

[julian]

Re: Barclaycard & Right of Set Off

Lloyds took money from my account for a cc leaving it overdrawn. That was after I had paid the minimum, albeit late. They did this several times.

The card was mine, but the account, at the time, was in joint names. I wrote and told them to stop annoying me and that they had embarrassed me and taken when I had already paid so affecting my ability to pay bills. They responded with a sorry we'll look into it.

Since then, whenever we have had an problem with the bank account, they have written to both, and they have not offset any more cc debts for the account which is now in default. I doubt whether they have any agreements for any of the accounts as they are ancient. However, it appears that they realised that they were wrong, but no compo from them, just a sorry.

[Enforcer]

Re: Barclaycard & Right of Set Off

Did you sent a Section 78 request to them?
Have you done a subject access request?
They were entitled to take money from your joint account provided the terms and conditions allowed it. However, that depends on when it happened.
Lloyds did not have this right under their "Terms and conditions for credit cards, they have recently written to all credit card holders and it is now in.
Watch out, they may be coming to get you!

[Enforcer]

Re: Barclaycard & Right of Set Off

Sent letter to Office of Fair Trading, copy of Gemma Andertons letter, copy of my reply.
Thought that I had better let them know that Barclaycard have changed the regulatory legislation.