Barclaycard - No Agreement

[smallfish]

Hi

I'm a newbie here and need a bit of advice.

My wife has just been declared bankrupt via a debtors petition (she's no longer working and hasn't been able to find a job so not enough money coming in to cover all our outgoings) and I REALLY need to get my outgoings down or I'll be going the same route.

I've just had notification from BC that they can't comply 'at this time' with my SAR as they are "currently unable to provide a copy of the credit agreement". My acct was opened in the mid-80s. I did the SAR last year, a few reminders this year (sorry, too busy with work to keep on top of things) and they finally responded last week. In the same notification, they also noted that they've now suspended my account with immediate effect as, in their view, I'm at risk of not paying because they can't produce the agreement. Bit of a bu99er as we were using the card to buy food, etc when we were short.

I'm paying the minimum and haven't missed any payments.

I reclaimed charges earlier in the year (refunded to my card account) and the next month they upped the interest so now I'm paying about £20 a month more than I was before I made the claim.

I'm trying to figure a way of sorting this and I wondered if, in light of the non-existent Agreement (at least at the moment) I could get them to freeze interest (or remove it??) and pay a much smaller amount each month (say £100)? Or offer a small F&F - £10k owed - how much do you think is reasonable and how long would they give me to get the money together?

By the way, Barclaycard don't, and have never, made updates to my credit file. There's never been a listing for this account on my file. Don't know why this is. My wife had a BC but taken out 15 years later and this is recorded on her file each month.

[Deepie]

Re: Barclaycard - No Agreement

Hi & Welcome ....have you read here > http://forums.all-about-debt.co.uk/showthread.php?t=276 this may help if you want to take that route .........

[garlok]

Re: Barclaycard - No Agreement

Barclaycard can take a long time to enter stuff on a cRF. However you are stiill paying you say. Then it is better to get any idea of a Full & Final out of your mind at this stage. You will get nowhere with a decent settlement and certainly not on your own at this stage of the game.

Did you make a request under s78 CCA1974? Did they comply (obviously not from the comment on SAR)

They only get 12 +2 days to comply with that request although it is standard practice on AAD to give them a couple of weeks or so more.
Failure to comply on their part renders the account unenforceable until such times as they do comply.

They only get 40days to comply with SAR. They commit a breach of the DPA for not complying as they clearly have in your case. They cannot refuse a SAR they have to supply all data that they do hold.

The moment that you ask these questions of Barclaycard they will suspend your account and hike the interest rates. They are so nervous of the old accounts (they generally do not have enough documentation to stand up in court) that they will take the stance that you won't pay when they get the requests. Although there are no legal grounds as such to stop paying on non compliance with s78 most people do stop and fight their ground once a letter of the type you have received comes through the door.

The choice has to be yours and I2D has suggested that you have a read up at one link and then take a read of some of the diaries. We can point you in the direction of the site help guides for UE etc. Just give a shout.

Garlok

[smallfish]

Re: Barclaycard - No Agreement

Hi

Yes, I did the SAR under DPA and Section 78 last July. Eventually got some prinouts, etc but not Agreement or T&Cs.

Got a bit bogged under with other things (life, etc) and then start sending them reminders again this summer. Got a letter from then in July saying, with reference to my Section 78 in July 2011 (in my response I did point out that it was actually 2010) they had attached a reconstituted and that they were entitled to do so blah, blah, blah.

But the recon was just a bit of paper with my name and an address I lived at 7 years after I got the card (I'd lived in 3 places in between), a cancellation notice and then a 2nd page with some T&Cs on.

I wrote back in July saying it was wrong and had the wrong address, and that I was very disappointed that they had sent me this shoddy paperwork after a year.

I got a letter in sept saying they needed a little longer to comply but that they would respond by 26th Oct.

Then 2 letters in the same envelope last week. One said
"It has come to our attention that our letter dated 22nd July incorrectly stated your address at the time of opening the account" (yes, that's cos i told 'em). "I assure of high level of service is paramount importance" yadda yadda. "We are unable to provide all the documents requested and accept that we are therefore prevented from enforcing our agreement with your client" my client?!?! Then it goes on about although they can't enforce the agreement, their rights continue, I should continue to pay, and they'll take action short of enforcement including reportsing to CRA, demanding payment, issuing defaults, instructing 3rd parties.

The second letter was their normal 'response to section 78' letter which gave the balance, etc but re-iterated that they were currently unable to give me the agreement and, because of that, they were suspending the account.

If I go the UE route, what will happen? I assume I will get lots of calls and letters (we've already been through this with the wife (5 calls a day from Capital One - even after bankruptcy!) so I don't think that'll be much hassle.

Looking through the forums, it looks like I just tell each new DCA that it's uneneforceable, right?

What happens if they find the agreement (or, more likely, manage to trace back to the address I was living at)?

[smallfish]

Re: Barclaycard - No Agreement

It seems to me that, with all the court cases that have happened, the banks can now commit a breach of the DPA by not providing the info and suffer no consequences whatsoever as a result. I read the notes on the ICO website about damages but you need to have suffered 'actual' loss/etc to start court action so that looks like a no go.

[garlok]

Re: Barclaycard - No Agreement

Right, you seem to have pushed all the right buttons. You a letter which clearly states that BC are not in a position to enforce the account. Guard that letter with your life and if it was me I would stop paying them anything. Its UE. End of until they do comply.

dinner calls will try and get back with more.

regards
Garlok

[garlok]

Re: Barclaycard - No Agreement

Right dinner done and washing up cleared LOL.

Under McGuffick nothing is classed as enforcement really until you hit the courtroom floor unfortunately, but handled properly it is unlikely in these circumstances to get that far.

If you stop paying then the likely scenario is hassle from BC's own collections department, followed by all sorts of threats, then it will be handed to Mercers who are Barclaycard by the way who will be persitent on the phone. They are a dormant company and are not allowed to dabble in anythign commercial (like debt collection). They will issue a big red default notice under s87(1) of the Act which will be defective. Eventaully they will get fed up and hand it acroos the office gangway to the adjacent desk (literally) to the next Braclaycrd company which is Calders. They will posture and threaten, they will issue a demand for monies not yet due and/or very quickly a demand for the full outstanding balance. This terminates the agreement, actually it does not because they cannot terminate a card agreement on the back of a defective DN. They are then in degault, not you, until such times as they do issue a compliant DN. Don't tell 'em any of this. They have made an artform of getting this wrong. The Amex v Brandon appeal (on this site for a good read) has just been won ensuring that DN issues are no longer de minimus as some judges and crditors would have had us believe.

Whne Calders get fed up with postruing and threatneing you will be out on the dCA circus with the rest of us. We have had 16DCAs and 3 lots of solicitors hammering us on four BC accounts. All UE. they have now conceded defeat on the smallest one and sold it on now to the Leeds Losers.

However, if you go this route you will nedd to start keeping a good log of phone calls, date, time, which account, brief details. Do not discuss anything by phone, tell them writing only, and put the phone down. Do not even go through security with any of them. Keep all letters that arrive at your address on these matters and also keep the envelope they came in stapled to the relevant letter all marked up with the date they actually arrived throught you door. It seems trivial but it is important.

On the f & F front whilst you are paying it is usel;ess trying to negotiate. Why would they? They are lining their pockets. The earlier you are defaulted and it goes out to DCAs and then is sold on to a debt purchaser at about 10p in the pound, the earlier you can negotiate a settlement if that is what you want to do. We have done it with a live account (OD and loan) but only with the help of a good specialist solicitor, it is not wise to attempt that alone, the case law in Contract Law is complex and expensive litigation can be the result.

regards
Garlok

[smallfish]

Re: Barclaycard - No Agreement

OK.

So we stop paying on the basis that they haven't complied with the Section 78 so the debt isn't enforceable.

The debt will then get passed to various internal agencies. Do we ignore these or do we quote 'alleged debt' (not sure how this works as our Section 78 requests referred to 'my account') or do we send a Section 78 request to each one? I understand we'll get lots of calls and letters so we'll just ignore those.

Then it will get passed to an external DCA. At that point we make a F&F? If they buy at 10p in the £ then that should give us a lot of scope to make a smaller F&F that we'll find more manageable to save up for

[smallfish]

Re: Barclaycard - No Agreement

Also....

Has anyone any experience of doing UE with Barclaycard? Would rather not have to go to court at all - has BC ever commenced summons where the AGreement doesn't exist or is unenforceable?

[Susie]

Re: Barclaycard - No Agreement

Smallfish, all you do is stop paying and wait for the phone calls and/or letters.
When you get a letter post a quick 2 liner of its contents and then someone will point you to the correct letter to respond with or will tell you to ignore them. If you are told to send a letter DO NOT sign it as some creditors/DCA's may copy the signature to an agreement.

If you have online access to your account change the phone number that they have listed for you (0151 473 2528 would be a good one to use in this case )which may reduce the calls a bit.

[helmsman]

Re: Barclaycard - No Agreement

Also....

Has anyone any experience of doing UE with Barclaycard? Would rather not have to go to court at all - has BC ever commenced summons where the AGreement doesn't exist or is unenforceable?

Hi
We have a letter from BC telling us they cant find cca therefor will not enforce through courts ect keep paying. Have paid nothing since Sept 2010 heard nothing since March 2011 when they confirmed no cca. Hope I have not tempted fate.
Good Luck

[garlok]

Re: Barclaycard - No Agreement

Hi smallfish,

Susie is correct here. As I said the choice in all these matters is yours, we can only share experience and knowledge. I would venture to suggest however that you have over simplified the situation in post no 8. As I said there are actually no legal grounds to stop paying on default of a s78 request.

However, most will stop paying and definitely once an admission such as you have in your hand has been made. The debt is not extinguished, it does not go away, it is just that they CANNOT enforce it. There is ALWAYS some risk attached to fighting these matters and there will certainly be a load of hassle. This is not a magic wand and often is not an easy road. Our aim here is help you get your life back on track at no or minimum cost to yourselves.

Barclaycard rarely litigate of their own volition. We have been battling with them for the last four years, the last two with solicitors representing us. They have just sold the smallest one on, so Barclaycard are slow in many ways. We have not paid since 2009 on four accounts, although UE was not in the reckoning when we started our complaints. It sure was once the sols we instructed got hold of it, on all four accounts. Our sols actually invited BC to take the matter to the courts as that was the only resolution they were going to get. To date they have declined.

If the accounts are UE and it does get sold on then there is very lttle need to consider F & F. The account is a lemon and the purchaser should have checked. UE is UE. Your credit reference files will be trashed anyway, justly or unjustly the moment you start a dispute with any of the banks. These defaults will drop off in six years, never to be reinstated. Accept that and live with it, it is a fact of life that we cannot change. Niddy the owner of this site will tell you that in two to three years anyway, this becomes irrelevant.

Whatever, as Susie has rightly said, there is nothing to do now, in my view, stop paying (why would you continue?) and wait. At each stage we will point you to a letter that needs to be sent as required. Just keep your thread updated. Much of it that you receive is drivel and can be ignored. DCAs unless they actually own the debt ( a longish way off yet for you) have ONLY ONE single weapon against you and that is your own fear of what they might do, which in fact is NOTHING only bully, posture and threaten.

regards
Garlok

[smallfish]

Re: Barclaycard - No Agreement

Do you think a solicitor is necessary or is this something we could fight ourselves? Don't have the money for legal representation.

[Never-In-Doubt]

Re: Barclaycard - No Agreement

Do you think a solicitor is necessary or is this something we could fight ourselves? Don't have the money for legal representation.

No - just stop paying and if anyone then hassles you and tries to enforce it you fire off one of these: ---> CCA Query - Letter Previously Confirming No CCA

Simples - it'll be fine, as they cannot enforce if they have failed s.78!

[Deepie]

Re: Barclaycard - No Agreement

Do you think a solicitor is necessary or is this something we could fight ourselves? Don't have the money for legal representation.

This is somthing that can be done by you....if your up to it there are template letters here to help.......if this is the route you wish to take the first step is to stop paying.....you know you will get defaulted!!!!
When they contact you let us know what they say & we will help good luck