Barclaycard & Right of Set Off

[Enforcer]

Re: Barclaycard & Right of Set Off

Well I have not paid them. However their statements are showing a £0.00 balance.

[garlok]

Re: Barclaycard & Right of Set Off

Is there a £6k balance or is it now settled? If settled then they can ignore s.78 but if there's a balance they must comply

This is Barclays mate. Without checking back through the whole thing to see, once Mercers have issued a DN which you have ignored of course, they then attempt termination on the back of that defective DN via Calder Financial, monthly statement balance goes to zero because as far as the day to day operation is concerned its in another pot, not their problem to collect if you see what I mean. Then as time wears on as we have discussed many a time, they put it out to DCAs the account numbers will change, they will send you new cards then they will eventually sell it on under yet another account number probably all with differing balances. It is their way of trying to screw you around to the maximum and to deceive you into using the new card claiming a "new" agreement with "new" T & Cs. Obfuscation is the name of the game plus if yuo complian and complain heavily you will get the standard P**S OFF letter saying this is their final response. We have a number of those including some which came after they had sold on and the unwary (stupid) buyer had complained to them. Absolute shockers.

regards
G

[Enforcer]

Re: Barclaycard & Right of Set Off

I have gone through this so many times. I have now sent in the forms and agreed to the adjudicators decision. Katherine Grant, the adjudicator, has, whether or not the service can rule on points of law. Declared this "agreement" unenforceable in law. She has stated that Barclaycard have NOT complied with my S78 request, nor even, the original statement, when they declared that they had sent me a S78 request, that I had not requested. However, the FOS have no remit over the enforceability of agreements, nor it now seems, points of law!
So the Financial Ombudsman service works on the basis that the Banks, always get it right. If it is wrong, they actually have no remit to enforce against the Banks!
However, I believe that her adjudication is in my favour.
Barclaycard have not complied with my S78 request. She makes this quite clear. They have not provided the terms and conditions at the inception of my account, "prescribed terms". Nor have they provided a legible copy of my agreement,(application form).
This renders it unenforceable in law. However the ombudsman service cannot rule on points of law!
So we have a situation where by, if Barclaycard can now provide the prescribed terms, the agreement was unenforceable at the time that they used their "legal right of set off". I doubt that they can.
If they cannot provide the prescribed terms, the Ombudsman cannot rule against them, as they do not have a remit over points of law! What a situation!
However, Barclaycard cannot possibly issue court proceedings against me, as the "agreement / application form" is a prospective, regulated agreement, and also, "improperly executed" ie not signed by Barclays.
To take action against me, they would have to take action for enforcement. That is take me to court to gain execution, of an improperly executed agreement. If they wished to do this, they would have to admit that they had no right in law, to use their "legal right of set off" as they never had one. They would be admitting an act of theft, "any money taken, will not be refunded".
They have quite happily pointed out to me that the Ombudsman acknowledged that they had a right of set off, it now seems that the Ombudsman rules an unenforceable agreement. Confusing.
Heads I win, tails I win!
I could now walk away. I do not intend to.
I wish to prove that Barclaycard have taken money, from vulnerable people, when they had no right to. They need to be made accountable for their actions. Watch this post.

As a footnote.
Without the help of Niddy, I could not have achieved this result. I will never forget his help!

[Never-In-Doubt]

Re: Barclaycard & Right of Set Off

I can't understand why you've agreed with her "contradictory" decision mate. In one breath she says they complied and in another she says she agrees its illegible - it can't be both can it, as you correctly say they've clearly failed with your s.78 request so I'm confused, why accept her decision especially when you don't agree with it, we're awaiting clarity from OFT, you have an ombudsman yet plus you have until 23rd September (you said).

Help me out here, or am I missing something? I've spent a lot if time trying to help you out and would hate for it to be for nothing due to impatience. There is no rush to stitch the FOS like a kipper.

I'm not having a go, just wondering the logic mate

Obviously I'm missing something somewhere....

[SXGuy]

Re: Barclaycard & Right of Set Off

Although i understand you want to stick it to the man, or rather stick up for the little men, id just leave it alone, shes agreed they havent complied, leave it at that until they do comply.

[Never-In-Doubt]

Re: Barclaycard & Right of Set Off

Although i understand you want to stick it to the man, or rather stick up for the little men, id just leave it alone, shes agreed they havent complied, leave it at that until they do comply.

But I think the underlying theme here is to expose them for dipping into an account they had no right to. If I recall correctly

this all helps prove Barclays don't follow guidelines and process.

[Enforcer]

Re: Barclaycard & Right of Set Off

But I think the underlying theme here is to expose them for dipping into an account they had no right to. If I recall correctly

this all helps prove Barclays don't follow guidelines and process.

Exactly my point.Thanks

[mgfboy]

Re: Barclaycard & Right of Set Off

This is slightly of the point but I was wondering but this. I had a Standard Life Bank mortgage , which was brought by Barclays/Woolwich ( not just my mortgage their whole book) does this now mean that Barclays/Barclaycar have a charge over my house and if I was to use the off set facility they could put there hand into the pot to pay off some of my BCard/Egg debts??

[Enforcer]

Re: Barclaycard & Right of Set Off

Seems like they can. The ombudsmen would give them the ok on it, even if it is unenforceable.
The ombudsmen has no remit on the enforceability of agreements, nor on the rule of law.

[Never-In-Doubt]

Re: Barclaycard & Right of Set Off

Has she awarded a financial settlement?

Enforcer - please answer the above point asap

Ideally if you could email me the whole letter she sent, even better! I need to answer the OFT so need to know this asap.

[Enforcer]

Re: Barclaycard & Right of Set Off

No, she has not awarded a financial settlement. Will forward complete letters to you.
Thanks

[Enforcer]

Re: Barclaycard & Right of Set Off

This gets even better! Got home from work tonight, letter from Barclaycard dated 20th August saying that "I am writing to inform you that the above account was assigned and transferred by Barclaycard to MKDP LLP on 16 August 2013
This means that the effective owners of the above account are now MKDP LLP."

Same envelope, from MKDP "We are writing to advise you that MKDP LLP has bought the interest in the above referenced account, including the outstanding balance. Consequently, MKDP LLP is now the legal owner of the debt due under this account."

If you read the postings, you will see that the Financial Ombudsman Service, have declared this account as unenforceable, until Barclaycard comply with OFT guidance. I have already accepted the adjudicators decision. Barclaycard have until the 23rd September to accept this or escalate to a full Ombudsman. They obviously sold this account so that they can tell the Ombudsman that they are no longer the legal owners.

MKDP have purchased a totally unenforceable account! Barclaycard should be made, by the FOS, to buy back this account until they complied with the FOS adjudication.

Will write a few letters.

Niddy, do you want copies of these letters for your contact at OFT?

[Never-In-Doubt]

Re: Barclaycard & Right of Set Off

Yep it's deffo not right but as I say I'll speak to my senior contact at OFT and clarity here once and for all

And we have clarity - we were right, FOS/Barclays are wrong

Happy to send the whole mail chain to you but the gist is -

On 2 Sep 2013, at 09:53, "James Gibson" <James.Gibson@oft.gsi.gov.uk> wrote:

Dear Niddy

Thank you for your email.


As you are aware, the OFT cannot rule on points of law but the guidelines attached in my previous email reflect the OFT’s general views of the statutory provisions. My understanding is that on the basis of S 78 of the CCA, nothing prevents a debtor from making more than one request, and that the creditor has a corresponding duty to supply the information in response to a valid request.

Exceptions to this are set out in S 78 (3): Subsection (1) does not apply to—


(a) an agreement under which no sum is, or will or may become, payable by the debtor, or


(b) a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.


I trust this resolves your query but please feel free to contact me if there are any matters you would like to discuss further.



Kind regards

James Gibson

James Gibson | Debt Collection Team| Corporate Services | Office of Fair Trading
Fleetbank House | 2-6 Salisbury Square | London EC4Y 8JX | T: 0 20 7211 8311| james.gibson@oft.gsi.gov.uk


From: Niddy [mailto:webmaster@all-about-debt.co.uk]
Sent: 20 August 2013 21:17
To: James Gibson
Cc: Alan Bates; Polly Ashford; Gary Furlonger
Subject: Re: Query Regards s.78

Hi

I think you've gotten confused. I am a business asking for clarity on whether the fact Barclays (or whoever it may be) is interpreting the provision of s.78 correctly as the example I provided clearly shows a flaw in that the bank seem to think they only need supply 1 s.78 yet the Act stipulates we can apply monthly.

All I'm seeking is clarity not a binding decision as the FOS & Barclays, in my example, have a different idea. I know the complaint procedure at FOS but they've interpreted YOUR rules incorrectly (in my view) which is why I'm writing, for clarity.

Forget the bank and the FOS as entities - call them business A & B for me but its clarity I'm after not a binding statement of fact.

Thanks

Niddy


Sent from my iPhone

[Enforcer]

Re: Barclaycard &amp; Right of Set Off

Thank you Niddy. Of course, you knew you were right, I knew you were right. Barclaycard also, I believe, knew you were right. The FOS tried to link it to another complaint. After all, Barclays are probably their biggest customer.

Without your help, and the Niddy special, the FOS would have side lined me!

Barclaycard have done their best to avoid complying with regulatory legislation regarding CCA1974. We only have to wait for their reply to FOS. By 23rd September. Will be interesting to see how they respond.

[Enforcer]

Re: Barclaycard &amp; Right of Set Off

Question for the "legal" people on the forum.
A Bank does not have a common law right of set off against a credit card. The Financial Ombudsman Service confirmed my view that they have a right of set off by agreement. This means, that they should have a correctly executed agreement before using set off.

Barclaycard and I believe other credit card suppliers have now included this right, in their terms & conditions. If you have a Bank Account within the same group, they have created, I believe, a "Security".
I have been reading on the Wikipedia site about CCA 1974. http://en.wikipedia.org/wiki/Consumer_Credit_Act_1974 Part V111 Security. What concerns me is the statement that The Act does not provide for any civil or criminal sanctions for creditors who enforce the agreement without a court order, however, but it may lead to the revocation or suspension of the creditors licence.

In my case, Barclaycard have an improperly executed agreement, and have yet to supply a legible copy of my agreement and the prescribed terms.

It appears that a creditor can enforce without going to court, and face no consequences. After all, what do you think the chances are of Barclaycard having their licence taken away!

Comments please.