Barclaycard & Right of Set Off

[Never-In-Doubt]

Re: Barclaycard & Right of Set Off

Brilliant letter, really am grateful for your help with this.
Sent to Ombudsman Service by e mail with a copy to Trading Standards.

Wonder how they would have replied if Joe Bloggs the backstreet lender had acted in the same way?

lol no need to copy anyone in mate - try and stick to what I suggest, trust me

Pointless as TS are nothing to do with FOS and likewise, the banks regulatory governance is to the FOS so TS are irrelevant in all this - totally.

Interesting reply back from Daniel Spenceley At Credit Services Association.

As above, CSA is usually for DCA's and not banks.

Their own description confirms this

The UK national association for debt recovery agencies and allied professional credit services.

[Enforcer]

Re: Barclaycard & Right of Set Off

Update.
Following Niddy's advice. Another letter to the Ombudsman going in the post tonight. Confirming my complaint in writing.

[Enforcer]

Re: Barclaycard & Right of Set Off

Update.
Gemma Anderton replied letter dated 20 May 2013, saying that she would pass my request for Section 78 to the appropriate area for processing.

[Enforcer]

Re: Barclaycard & Right of Set Off

Further update.
Received the following letter today, dated 21 May 2013.

Reference: Section 78 of the Consumer Credit Act 1974

I refer to your request for information.

The information we must provide to you under the terms of Section 78 of the Consumer Credit Act 1974 (the "Act") is prescribed by the Act and by the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983. Section 78 of the Act provides that, where a creditor shall give the debtor a copy of the executed agreement (and any document referred to in it) and a statement of the account.

I enclose a reconstituted copy of your credit agreement together with a copy of the terms of your credit agreement as varied in accordance with section 82 (1) of the Act. This is a statement of the terms of your agreement with us and incorporates any variations to the terms made since you entered into this agreement. However, the interest rates, fees and charges set out in the agreement, may differ from those we have discussed with you, due to the current status of your account.

A statement of your account is below:

The current credit limit on your account is £0.00

The current balance on your account today is £6,899.08

Due to the current status of your account, the full outstanding balance is now due.

This completes our obligations under Section 78 of the Act.

In relation to your comments regarding Section 189 of the Act; I would like to confirm that we are the original creditor as defined in section 189 of the Consumer Credit Act 1974 and no assignment of credit has taken place.

I refer to your request for a copy of your agreement which complies with section 61 of the Consumer Credit Act 1974/ which is signed (and/ or) properly executed. We believe your credit agreement to be fully compliant with the Act.

I refer you to paragraph 230 of Carey v HSBC which states that "it is insufficient, without more, to point to the absence of a signed, or any proper s78 copy as a foundation for a plea of an [improperly executed agreement]".

We believe your credit agreement to be properly executed and fully compliant with the Act. Your references to Section (s) 65/ 127 (3) of the Act are therefore irrelevant.

Yours sincerely

Michelle O'Rourke
Barclaycard Customer Services

UNSIGNED! I thought that the statement of account HAD to be signed.

going for a beer to calm down after reading this bulls-ite.

No reconstituted agreement enclosed!

"YOUR RIGHT TO CANCEL: Once you have signed this agreement, you will have for a short time a right to cancel it. Exact details of how and when you can do this will be sent to you by post by us.

Yes! the cancellation notice is included at the end of the original Terms and Conditions, proving that they were sent at a later date.

Copies of terms and conditions from 03/00 and 21/03/2012 enclosed.

Any help on a reply to this load of crap?

[Never-In-Doubt]

Re: Barclaycard & Right of Set Off

Lol you're a fussy bugger.

You got what you wanted. Crap or not..

I'll look in tomorrow mate

[Enforcer]

Re: Barclaycard & Right of Set Off

I will send a reply to this load of crap. But not now, when I have time at the weekend.
Thanks Niddy.

[Never-In-Doubt]

Re: Barclaycard & Right of Set Off

Nah sit tight will you!! I said I'll come back to you mate

[Enforcer]

Re: Barclaycard & Right of Set Off

Thanks Niddy, will do as you suggest.

[Enforcer]

Re: Barclaycard & Right of Set Off

Further update.
Received the following letter today, dated 21 May 2013.

Reference: Section 78 of the Consumer Credit Act 1974

I refer to your request for information.

The information we must provide to you under the terms of Section 78 of the Consumer Credit Act 1974 (the "Act") is prescribed by the Act and by the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983. Section 78 of the Act provides that, where a creditor shall give the debtor a copy of the executed agreement (and any document referred to in it) and a statement of the account.

I enclose a reconstituted copy of your credit agreement together with a copy of the terms of your credit agreement as varied in accordance with section 82 (1) of the Act. This is a statement of the terms of your agreement with us and incorporates any variations to the terms made since you entered into this agreement. However, the interest rates, fees and charges set out in the agreement, may differ from those we have discussed with you, due to the current status of your account.

A statement of your account is below:

The current credit limit on your account is £0.00

The current balance on your account today is £6,899.08

Due to the current status of your account, the full outstanding balance is now due.

This completes our obligations under Section 78 of the Act.

In relation to your comments regarding Section 189 of the Act; I would like to confirm that we are the original creditor as defined in section 189 of the Consumer Credit Act 1974 and no assignment of credit has taken place.

I refer to your request for a copy of your agreement which complies with section 61 of the Consumer Credit Act 1974/ which is signed (and/ or) properly executed. We believe your credit agreement to be fully compliant with the Act.

I refer you to paragraph 230 of Carey v HSBC which states that "it is insufficient, without more, to point to the absence of a signed, or any proper s78 copy as a foundation for a plea of an [improperly executed agreement]".

We believe your credit agreement to be properly executed and fully compliant with the Act. Your references to Section (s) 65/ 127 (3) of the Act are therefore irrelevant.

Yours sincerely

Michelle O'Rourke
Barclaycard Customer Services

UNSIGNED! I thought that the statement of account HAD to be signed.

going for a beer to calm down after reading this bulls-ite.

No reconstituted agreement enclosed!

"YOUR RIGHT TO CANCEL: Once you have signed this agreement, you will have for a short time a right to cancel it. Exact details of how and when you can do this will be sent to you by post by us.

Yes! the cancellation notice is included at the end of the original Terms and Conditions, proving that they were sent at a later date.

Copies of terms and conditions from 03/00 and 21/03/2012 enclosed.

Any help on a reply to this load of crap?

I would also point out I have not made any comments regarding Section 189 of the Act.
Nor have I discussed the interest rates, fees and charges with Barclaycard.

[Never-In-Doubt]

Re: Barclaycard & Right of Set Off

They are sending statements as if that is the recon, clearly.

Mate what reason do you need/want this? You're not paying are you? So why not just leave em to it..... see what the FOS say/do and take it from there.

I can't see what arguing this any more will do - they clearly don't have the agreement so you know they cannot enforce it - so play the game and you're £6k better off...!!

[SA Gold]

Re: Barclaycard & Right of Set Off

yeah just Barclaycard trying it on mate. F*ck 'um!

[Enforcer]

Re: Barclaycard & Right of Set Off

Thanks Niddy & Missy, you're right of course. However, if I can get an admission of UE, it could alter the game for Barclaycard using set off. Prove that they have done it on an account without an agreement, then they will have to start playing by the rules. This will help all of the future customers who might otherwise have their accounts raided. At least that's my hope.

Will see what happens with FOS.

[Enforcer]

Re: Barclaycard & Right of Set Off

I would look to appeal the FOS decision by responding (via email) with the following mate - see what that does...

Dear Ms Grant,

Ref: xxxxxxxx

I write with reference to your letter dated 9th May 2013. Unfortunately it appears you're missing the reason for my complaint, and struggling to come to terms with what it is I am actually asking of the Service.

You need to totally disregard any and all previous complaints I have made to Barclays. This complaint is brand new and specifically relates to their ignorance of the Consumer Credit Act. Nothing more, nothing less.

There is no previous complaint to link to, this complaint was straight forward enough from outset and literally was formed because Barclays keep refusing to reissue s.78 documentation when the Consumer Credit Act and the OFT Guidelines state otherwise.

I won't go over old ground again but in Layman terms the Act itself clearly states;

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a)the state of the account, and

(b)the amount, if any currently payable under the agreement by the debtor to the creditor, and

(c)the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(2)If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)(c), he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

(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.

Now as you can see from the above; I am well within my rights to request a new s.78 request every month if I so wish, this is concise in the Act as detailed in the above text. It is this sole reason that I am complaining, so in theory I could (if I wanted to) request a new s.78 every month and if the bank refuse, could then complain to the Service for non compliance of regulation.

What part of that do you fail to grasp and why is it so obviously difficult for you to understand that this complaint has absolutely nothing to do with any historical complaints made against this organisation.

You'll find I did state in my original complaint, quoted again by you in your letter of 9th May 2013;

“I can assure you that this is in no way a duplication of any previous complaint. My previous complaint was over whether Barclaycard had a right of set-off. This complaint is quite simple, Barclaycard are refusing to supply a copy of documents as requested under the regulatory legislation. CCA 1974 section 78 (3) (b).”

Which again reiterates what I am saying here today.

I am getting sick of tired now of being passed around and fobbed off. All I want is for the organisation to supply me a copy of any alleged credit agreement in line with s.78 of the Act - that is not too much to ask for now is it? All other financial organisations in the UK adhere to the Act so why are Barclays so different, in your view?

Please also treat this letter as a formal complaint about the way I have been treated by the Service. I wish for you to escalate this whole matter to your line manager for investigation because clearly you do not understand the merit of consumer complaints and instead prefer to work to your view which as I've proven already, is quite incorrect.

I look forward to hearing from you in due course.

Yours sincerely,



Enforcer

This is exactly as the Financial Ombudsman Service "Should" act.
However as the video The Devils Advocate (FOS) by White Rabbit shows.
They are not acting in this way. They are trying to link a previous final response from an entirely different complaint.

Great video, worth watching.

[Enforcer]

Re: Barclaycard & Right of Set Off

E mail today from Katherine Grant. Complaint now referred to the Ombudsman's Office.

[Enforcer]

Re: Barclaycard & Right of Set Off

E mail today from Katherine Grant. Complaint now referred to the Ombudsman's Office.

Interesting e mail from Katherine Grant at Ombudsman service.
Further to the below, I can confirm that I have now received the letter you have sent to us. As Barclaycard has apparently provided fresh "referral rights", in other words reiterated the right to refer the complaint to us, I have taken your complaint back from the Ombudsman it had been allocated to and will review the merits of your complaint.

With the above in mind, I have written to Barclaycard to ask if it has any further submissions to make. I will keep you up to date with how matters progress, but please let me know if you have any questions.

The letter she refers to was a copy of a standard template from Barclaycard saying that they "consider" the agreement enforceable. My reply can be found on the post Barclaycard raided my account.