BMWMAN -v- Barclaycard

[bmwman]

Hi All

I have read some very interesting threads on here regard Barclaycard and CCA requests.

I sent a CCA request to B/C on the 22/10/2009 and received a standard reply. As below

CCA.doc

I see from the manchester hearing that the CCA must contain the debtors name and address therefore can this be applied retrospectively thus ruling this CCA as non-complient.

[slick132]

HI BMW,

The letter says your agreement will be sent under separate cover although they don't always do this.

Give them a week or so to provide it. If they don't, then write giving them a deadline to comply of 10 days, or you'll complain to the fos.

[bmwman]

Hi Slick132

Thank you for your reply.

Looking at the CCA it would appear not to comply with S78 in that the debtors name and address is missing. The Manchester ruling states that the CCA must contain the debtors name and address as at the time the agreement was executed.


Manchester Summery.doc

[slick132]

Hi BMW,

Sorry, I now see the BC letter was sent last year and the "agreement" which they promised turned out to be their T&C's.

So they've not sent you an agreement, they have merely tried to fulfil their obligations imposed by s.78 CCA1974.

You could complain to BC that they haven't sent you a copy of the credit agreement, and you now require this or will complain to the fos.

Are you still paying on this a/c?

[bmwman]

Hi All

Can anybody confirm for me that after the issue of a DN that ends the agreement and as such no further charges can be applied to the account.

Many Thanks

[bmwman]

Hi All

I have now received a copy of my agreement. Firstly it does not contain my surname just my first names.

Agreement.jpg

[bmwman]

Hi All

Sorry the image is so small but can not get it to go larger.

As I said below it does not contain my surname apart from where I signed it. It has also not been signed or dated by Barclaycard.

I would also like someone with more knowledge to check over the rest of the form for me so if you can help please PM me.

Many Thanks

[slick132]

Hi BMW,

The documents you posted is too small to usefully read.

See here on how to put the doc't on your thread, or post a link to it with PhotoBucket - http://www.consumeractiongroup.co.uk...i-dummies.html

[bmwman]

Hi All

Hope this is better.

[slick132]

Hi BMW,

The document is missing Prescribed Terms required by the CCA 1974, eg the APR, Credit Limit or details of how this is to be decided, method of repayment. The missing surname is also a critical omission.

So it would appear not to be enforceable by a court.

Have there been any penalty charges on the a/c in the last 6 years and do you have all the statements for this period.

[bmwman]

Hi Slick132

Thank you for the reply

Yes charges have been applied to this account and claimed back just over £1000.00 is BC applied thier interest rates to these charges and then applied the repayment to the account thus clearing any debt leaving me with juts over £300.00 to come back. However their have been 4 or 5 DNs issued by Mercers so its not over. Have sent BC a SARs letter requesting copies of DNs specifically issued by BC or copies of written or as a sworn statement of truth any verbal authorization to any third party company. I received a reply to that yesterday and all that arrived was copies of DNs issued by Mercers on BC headed paper. So sent them another letter today.



Dear Mrs Harrington,

Thank you for your reply to my Subject access request dated 9th April 2010 (copy enclosed). PLEASE NOTE this has NOT been answered. I asked for copies of Default Notices specifically issued by Barclaycard (NOT THIRD PARTY COMPANIES) or copies of written or as a sworn statement of truth any verbal authorization to any third party company to issue Default Notices your reply contains neither.

You therefore have until the 21st May 2010 to comply with the request or please answer Yes or No to the following questions within the meaning for the Perjury Act 1911 Section 5 and the Fraud Act 2006 Sections 1 to 5

1) That Barclaycard have issued Default Notices against me? Y/N [ ]


2) That Barclaycard have authorized a third party company to issue default notices against me? Y/N [ ]


PLEASE TAKE NOTICE THAT FAILURE TO PRODUCE THE REQUESTED INFORMATON WILL RESULT IN THE ADVERSE MEANING NO DEFAULT NOTICE HAS BEEN ISSUED AND NO PERMISSON HAS BEEN GIVEN IN WRITING OR VERBALLY.


This remains part of my first Subject access request and is covered under my first payment of £10.00.

I know Mercers are BC inhouse collection agancy and that Mercers are filing dormant accounts at Companies House, Caulder Fincial Services is mearly a trading name for Mercers and both operate on he same credit license. The Consumer Credit Act states that DNs can be issued by the creditor or hirer therefore DNs issued by Mercers are fraudulent.

Fraud Act 2006 c35

2 Fraud by false representation
(1) A person is in breach of this section if he—
(a) dishonestly makes a false representation, and
(b) intends, by making the representation—
(i) to make a gain for himself or another, or
(ii) to cause loss to another or to expose another to a risk of loss.
(2) A representation is false if—
(a) it is untrue or misleading, and
(b) the person making it knows that it is, or might be, untrue or misleading.
(3) “Representation” means any representation as to fact or law, including a representation as to the state of mind of—
(a) the person making the representation, or
(b) any other person.
(4) A representation may be express or implied.
(5) For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).

[slick132]

Just to make sure you're aware, BC never issue DN's and this is always (to my knowledge) done by Mercers "on behalf of" their client, BC.

This practice doesn't conform to the precise requirements for the issue of DN's which cannot be issued by Mercers on BC's behalf. Or at least NOT in the manner that Mercers do it.

[slick132]

Did you get a 2nd sheet showing Prescribed Terms as on LittleFatBudha's thread.

[bmwman]

Hi Slick132


Exactly my point this is why I have asked BC to provide DNs that do not exsist. As Mercers issued the DNs I need BC to prove that Mercer had permission from BC to issue them.

Secondly NO I did not recieve the second page with terms and conditions with this request.

[slick132]

Mercers are acting with BC's full permission but they still fail to issue DN's in the precise manner required for the DN to be valid.

In any event, let's see if and how BC respond.

[bmwman]

Hi Slick132

Thanks for the reply

Statute states that DNs can only be issued by the creditor or higher not their agents.