Barclaycard & Right of Set Off

[Enforcer]

Re: Barclaycard & 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.

Surprised that no one has commented on this. The wiki account is referring to Goode 1979. Well out of date! This goes to show how you can be mislead by internet sites.

Barclaycard have already stated in writing that they do not consider this to be a "security". What else can it be? They have written their terms and conditions in such a way, that anyone who believed that a Barclaycard was an unsecured loan, is mistaken when they have any accounts related to Barclays Bank, even a Woolwich mortgage, Barclays have a security against a default. Sorry, Barclaycard do not consider it a security. What is it then?


Any comments now?

[Enforcer]

Re: Barclaycard & Right of Set Off

Barclays Bank Retail terms & conditions change on 9th October.
Section 1 page 2. This agreement doesn't cover the following products and services because they have completely separate terms and conditions.
Loans
Credit cards
Mortgages.

Looks like they have finally got the message!

However.
Section 9 page 24.
Set off (including money owed to other parts of Barclays such as Barclaycard)

So they now agree, that they must have a correctly executed agreement, including prescribed terms, before using set off.

[Enforcer]

Re: Barclaycard & Right of Set Off

Ok, thanks to Niddy! We are finally getting there. Email today from the FOS.
Dear Enforcer,
Further to the below, I have now received a response from Barclaycard. It has confirmed that it is unable to comply with my adjudication, as follows:

"Further to the below email I would like to apologise for the delay in providing you with a response.
I have received confirmation that we do not have a more legible version of the document you require.
The attachments we provided previously are all we have available"

With the above in mind, it seems to me that Barclays is simply unable to respond to your Section 78 request as it should. As you are aware, non-compliance with Section 78 does not then mean that a debt is written off.

As our previous decision explained, our service is unable to declare a debt as unenforceable and we have concluded that Barclaycard has a legitimate claim to recover the debt.

Therefore, the only element of your complaint which we are able to consider is whether Barclays has provided you with the information you requested. It remains my view that Barclays did not do this.

Barclays has not asked for your case to be referred to an ombudsman. Whilst you have accepted my adjudication, given Barclays recent comments, I think it fair to ask you again if you would like an ombudsman to consider this case. However, if the ombudsman were to agree with me it would still not alter the fact that Barclays cannot send you the information you require. With this in mind, it seems to me that, in providing you with confirmation of your concerns about your Section 78 requests, our service may already have resolved your complaint as far as we are able.


I would be grateful if you could let me know if you would like an ombudsman to consider your complaint by 4 October 2013. If I do not hear from you by this date, I will assume you are satisfied and your complaint will close.


If you do have any questions regarding the above please do not hesitate to contact me.


Yours sincerely,

[Enforcer]

Re: Barclaycard & Right of Set Off

No replies yet!
In effect, this so called "agreement" is now covered under S127 (3) there is no court in the land that can order enforcement. The adjudicator is very kindly telling me that Barclaycard has a legitimate claim to recover the debt. However, I forgot to tell her that, Barclaycard are no longer the legal owner, they sold the debt to MKDP! Tough luck! I also feel that she is trying to get this to an ombudsman for a reason, perhaps to award compensation. Sorry, I will not be compromised on this. This could be construed as a settlement. My gut feeling is to accept this as it is. Now, the ombudsman ruling was that Barclaycard had not complied with S78. Their first attempt, which I said was a deliberate attempt to deceive and mislead me, contrary to CPUTR was in September 2011. Does this mean that the account was in law rendered unenforceable? I really need an answer to this as a point of law.

If this account was rendered unenforceable due to an incorrect reply to S78, they did not have any contractual rights!

Can one of the legal team on the forum please reply?

[Enforcer]

Re: Barclaycard & Right of Set Off

Can we now move on to the "theft act" my understanding is that an act of theft is an intention to "permanently deprive". I have a letter from Barclaycard stating that any money taken under their "legal??" right of set off WILL NOT BE REFUNDED. to be fair 18 months later, it has not been refunded! However it now turns out that there were no prescribed terms, their first set of terms & conditions were a variation of the prescribed terms, that never existed, the second variation, include the right of set off. Totally unenforceable, again can I ask our legal team, have they committed an act of theft?

[Enforcer]

Re: Barclaycard & Right of Set Off

Next question. As Barclaycard quite obviously did not have a "legal" right of set off on my account. How many times have they taken money from vulnerable people illegally? This is surely the next banking scandal!
The lending standards board during their review said that one bank, unnamed used the right of set off on more than 30,000 accounts in a six month period. They need to investigate this, how many times did this NOT comply with law. This is the whole point of my fight.

I know that I could have closed my account and be classed as a filthy debtor. I did not, and have now paid well over a £1000.00 in charges to Barclays Bank. I could have walked away and continued as many have with UE. I am determined to stop this abusive ROSO that causes undue hardship to many vulnerable people. My question is how? Do we need to inform the press, or go through due process. The problem is, as you will note from the first page of my post. None of the regulatory bodies can act in the case of an "individual". This is how the Banks have got away with their actions for so long. HELP PLEASE!

[Never-In-Doubt]

Re: Barclaycard & Right of Set Off

Mate, Barclays are fucked - have you seen that thread I started the other day?

You need to stop worrying about this so much and await a reply then work towards the next move afterwards. You cannot bring the Theft Act etc into this - sorry mate, it'll cost you thousands for the risk of what? You need to try and fight them procedurally as opposed to legally

[Enforcer]

Re: Barclaycard & Right of Set Off

Mate, Barclays are fucked - have you seen that thread I started the other day?

You need to stop worrying about this so much and await a reply then work towards the next move afterwards. You cannot bring the Theft Act etc into this - sorry mate, it'll cost you thousands for the risk of what? You need to try and fight them procedurally as opposed to legally

Thanks Niddy, now that Barclaycard have finally admitted that they cannot comply with Ombudsman adjudication, do I just write to them and ask for my money back?

[Never-In-Doubt]

Re: Barclaycard & Right of Set Off

Can you send me a copy of their letter - I'm slightly confused mate.

[Never-In-Doubt]

Re: Barclaycard & Right of Set Off

Ok, thanks to Niddy! We are finally getting there. Email today from the FOS.
Dear Enforcer,
Further to the below, I have now received a response from Barclaycard. It has confirmed that it is unable to comply with my adjudication, as follows:

"Further to the below email I would like to apologise for the delay in providing you with a response.
I have received confirmation that we do not have a more legible version of the document you require.
The attachments we provided previously are all we have available"

With the above in mind, it seems to me that Barclays is simply unable to respond to your Section 78 request as it should. As you are aware, non-compliance with Section 78 does not then mean that a debt is written off.

As our previous decision explained, our service is unable to declare a debt as unenforceable and we have concluded that Barclaycard has a legitimate claim to recover the debt.

Therefore, the only element of your complaint which we are able to consider is whether Barclays has provided you with the information you requested. It remains my view that Barclays did not do this.

Barclays has not asked for your case to be referred to an ombudsman. Whilst you have accepted my adjudication, given Barclays recent comments, I think it fair to ask you again if you would like an ombudsman to consider this case. However, if the ombudsman were to agree with me it would still not alter the fact that Barclays cannot send you the information you require. With this in mind, it seems to me that, in providing you with confirmation of your concerns about your Section 78 requests, our service may already have resolved your complaint as far as we are able.


I would be grateful if you could let me know if you would like an ombudsman to consider your complaint by 4 October 2013. If I do not hear from you by this date, I will assume you are satisfied and your complaint will close.


If you do have any questions regarding the above please do not hesitate to contact me.


Yours sincerely,

oh - missed this!

Hold fire, we'll sort this over the weekend / Monday matey

[Enforcer]

Re: Barclaycard & Right of Set Off

To continue this epic saga. Barclaycard cannot provide a reconstituted version of my agreement, nor can they provide a copy of the "prescribed" terms. However, the Financial Ombudsman Service are unable to rule on the enforceability of agreements, or points of law. That says it all.
I have once again written to Gemma Anderton, Executive Office Barclaycard, and asked for a refund of the money that they took from my account using their "legal" right of set off.
Received a reply today.
We will keep a record of your recent correspondence and anything further received in respect of this matter, however I must advise that we will not be corresponding any further.

(little does she know what is going on behind her back)

I am determined to get my money back from Barclaycard. I know that Niddy thinks that I should walk away now. But I will win. Will keep everyone informed.

[The Tech Clerk]

Re: Barclaycard & Right of Set Off

To continue this epic saga. Barclaycard cannot provide a reconstituted version of my agreement, nor can they provide a copy of the "prescribed" terms. However, the Financial Ombudsman Service are unable to rule on the enforceability of agreements, or points of law. That says it all.
I have once again written to Gemma Anderton, Executive Office Barclaycard, and asked for a refund of the money that they took from my account using their "legal" right of set off.
Received a reply today.
We will keep a record of your recent correspondence and anything further received in respect of this matter, however I must advise that we will not be corresponding any further.

(little does she know what is going on behind her back)

I am determined to get my money back from Barclaycard. I know that Niddy thinks that I should walk away now. But I will win. Will keep everyone informed.

Once again peeps have found out that FOS is a waste of time, and the only route is thru the courts, so peeps keep in mind on the subject of FOS & enforceability of agreements is not a remit of the FOS UNCLE TOM COBLEY & ALL.

[Never-In-Doubt]

Re: Barclaycard & Right of Set Off

Mate it's nothing to do with walking away. You're pushing for a tiny refund when you've got the whole debt for free.

You need to step back and realise you e already won the fight. You won. End of!!

they will ignore you now, rightly so. Based on you accepting the FOS decision so they will never reply anymore. Wasted exercise matey.

[Joanna Connolly]

Re: Barclaycard & Right of Set Off

Niddy is right. You won't succeed i getting the money repaid.

Concentrate on the fact that you may have lost a small battle but look like you have 'won' the war by having the remaining debt effectively written off.

[Enforcer]

Re: Barclaycard & Right of Set Off

Niddy is right. You won't succeed i getting the money repaid.

Concentrate on the fact that you may have lost a small battle but look like you have 'won' the war by having the remaining debt effectively written off.

Thanks for the reply Josie.
Just wait and see.