Barclaycard - double default on credit file ???

[McGinty]

Hi -need some advice please about a Barclaycard taken out in 2007-my credit file says 17/7/2007 but I am sure it was March 2007. I fell behind with payments and eventually the account was defaulted on 14th January 2008 by Mercers. I have a copy of the default notice.
I realised at that stage that Barclaycard did not hold the original credit agreement as I had sent a SARS request and it was not in the papers that I received. I fought off several attempts from the various arms of Barclaycard-Mercers etc-each time asking them to produce a copy of the original agreement which of course they could not as it has obviously been lost along the way. To my knowledge no payments were made from early 2009 till this day. A mounting debt meant I had to employ a debt management company to fend off the various other creditors which was successful.
I have just received a copy of my credit report from Experion and see that the debt was defaulted AGAIN by Barclaycard-unknown to me-on the 08/04/2010. I would like to know if they can do this and also as they haven't got the original agreement how do I stand now? I was expecting to see the debt cleared from my file as the original default was in January 2008-7 years ago. It is still showing, I presume because of the more recent default. Any advice would be very welcome please.

[Amethyst]

Re: Barclaycard

Morning

Hope you had a lovely Christmas and New Year McGinty xxx

Someone else should stick their head in as it's not really my area but No they can't default you twice - do you have a copy of the credit report where it originally showed as defaulted in Jan 2008 ? You'll need to write to the CRA's and Barclaycard about it and ask this second default be removed, and evidence the original default if you can. The default notice isn't really evidence of the default on your credit file as you could have bought the account up to date following the DN. Do you think this is stat barred now or did your debt management company have contact with barclaycard/mercers on your behalf or make any arrangements to pay etc ?

Have moved your post to the right area. xx

[nemesis45]

Re: Barclaycard - double default on credit file ???

Hi, A couple of points.
1. There is no specific obligation with in the DPA 1998 to provide the agreement, the Consumer Credit Act 1974 sects. 77/78/79 provide for this.
2 A default notice does Not mean a default has been place, it is just notification of what will happen is an account is not returned to proper status.

Mercers are in house collections for Barclays.

Were payments or an arrangement to pay put in play after the default notice was issued?

Barclays were in the habit of letting DNs expire to see what was forthcoming so my opinion is this is what has happened to you.

The default notice was not followed up.

Also if you acknowledged the debt at any time the SB clock restarts.

Removal of Defaulted Accounts from Credit Files happens on the 6th anniversary of the default date if the debt has been paid or not ,this date has often unrelated to the date a debt becomes statute barred.

The removal of the entry after 6 years Does Not Mean the debt is SB, and SB only means it cannot be enforced via the courts in England and Wales the debt still exists in Scotland the debt is extinguished.

[McGinty]

Re: Barclaycard - double default on credit file ???

Hi -no payments were made on this card after January 2008 as at that stage I realised Barclaycard did not have the original agreement. Mercers defaulted on January 14th 2008. Despite several attempts from various in house departments of Barclaycard I did not pay anything as I asked them all to produce a copy of the original agreement which of course they could not. Barclaycard defaulted the debt again for some reason on 8th April 2010 -just over 2 years after the first default. Barclaycard have not bothered with chasing me for this in well over 2 years now. I am not unduly concerned about them wanting payment anymore as the only way they could get me to pay is by taking me to court and they don't have the original agreement to do this.
I am more interested in getting my credit file cleared.
I read somewhere else that a debt cannot be defaulted twice as it is a breach of data protection?

Going through old papers and I found;
I wrote to Bc on 22/08/2009 and told them no more payments would be made in respect of the debt until they supplied me with a copy of the original agreement-they failed to do that. I do have a copy of this letter. I found evidence on a computer print out sent to me under a SARS that the debt was taken out on 30/04/2007. The application would likely have been in a week or so before this date.
Amethyst has asked if I can prove the debt was defaulted in 2008-I only have the default notice from Mercers which states default again 11/09/2009. The default from 2008 has not surfaced in my docs as yet but I have found a copy of it in the old PCF forum with a clear date of 14/01/2008. I realise these defaults may not not show on my credit file.
How can Barclaycard get a default without proving the debt exists-i.e. Having the original credit agreement?-Thanks Mc

[McGinty]

Re: Barclaycard

Hi Amethyst, I have had a good Xmas and New Year and I hope you and yours have also. Thanks for your help with this- I am a bit of a dummy with computers! I have some old documents relating to this debt and I will have a look to seen if there is a credit report from that period-if not is it possible to obtain one? I also have a copy of the original default notice. I gave specific instructions to the Debt management company regarding two cards and this is one of them-that it should not be paid. The other was a Citi card in exactly the same position-no original agreement. That one has disappeared and had not contact from them in 4 years now. The Debt management company have been helping me since December 6th 2010. The latest Experion report does not show any payments having been made and I can post this up as I am not 100% I am reading this properly. Thanks xx

[McGinty]

Re: Barclaycard - double default on credit file ???

Just a question please-can a credit card company default a debt without telling you. I see I have another default on my file during which time my debt was being handled by Debt company and were making agreed payments-they didn't inform them either.-Thanks Mc

[nemesis45]

Re: Barclaycard - double default on credit file ???

What you need to do is attempt to find out if the default was actually recorded some time after January 14th 2008.

What I am trying to establish is are you relying on the date on the default notice??
Defaults are usually registered within 6 month from the date on the default notice so**** the date on a default notice is Not the date a default is placed.**** is show only that if the account was not returned to its proper state with a set time the company can/will place a default on the account.

A Default Notice is only notice of what can happen if the terms in the DN are not met, I've known various trading styles of the Barclays empire issue default notice if a payment is missed on a payment plan, if the missed payment is made up no default is placed the can happen a considerable number of times.
At present I still feel that the first DN was never followed through.
nem.

[nemesis45]

Re: Barclaycard - double default on credit file ???

Accounts are usually defaulted immediately a DMP is entered into.

[McGinty]

Re: Barclaycard - double default on credit file ???

I am relying on the notice date.It is quite likely that it hasn't I suppose. Is it possible the credit reference agencies can go back further than 6 years?
Another daft question!!- If I were to offer a card company a settlement could I make it a proviso that the default is to be removed? Thanks again, Mc

[nemesis45]

Re: Barclaycard - double default on credit file ???

I am relying on the notice date.It is quite likely that it hasn't I suppose. Is it possible the credit reference agencies can go back further than 6 years?
Another daft question!!- If I were to offer a card company a settlement could I make it a proviso that the default is to be removed? Thanks again, Mc

My feeling is confirmed I believe the date a default notice is issued has not relation to when a default is placed, the Information Commissioners Office says that is default is going to be placed it should be within 6 months of the cause of action.
A default May not be placed if the creditor does not believe the relationship with its customer is retrievable e.g payment plans with the creditor in house.
The view on settlement and partial settlements of defaulted account is that the credit file should reflect the true conduct of the account.
e.g. Satisfied or partially satisfied with the entry remaining on file for the balance of the 6 year life of the default.

I am surprised though that Barclays have not sold the debt on.

If you want to consider a settlement at this stage my view would be to make a CCA request under sect.77/78 CCA 1974 for a copy of an agreement or an unequivocal admission that one does not exist, this could be a negotiating tool if used in the right way.

[McGinty]

Re: Barclaycard - double default on credit file ???

Thanks-Barclays can't sell the debt on as it needs proof that the debt exists-the original agreement. I have sent 3 or 4 CCa's to Barclays to no avail-they just don't have it. I am content to let this go as it is-just trying to clean up my credit with the reference agencies. Mc

[ncf355]

Re: Barclaycard - double default on credit file ???

Slight repeat from my response to Nem's post elsewhere, but..........................


Hi,

As is often the case, I'll throw my ball into play here

I don't agree, and never have done, that a Default notice sent under Section 87 regarding impending court (or other) action bears no relevance to the date a Default should be recorded on a credit file

The ICO's position in their guidance for the placing of Defaults is that ordinarily, the Default should be filed at the point the relationship breaks down, and the main yardstick they use for this is no sooner than 3 months and no later than 6 months after the last full contractual payment has been made, or where a debtor has otherwise made clear that he intends not to pay.

However, as the guideline is 'breakdown of relationship', I can see no clearer demonstration of a breakdown in relationship than the Creditor threatening court action unless the arrears are paid within X days.

Myself and Andy, and for that matter Nem, regularly disagree on some of these finer pointts but I really dont see how this can be seen any other way and I have certainly used the argument to the desired effect against various creditors, both several years ago and more recently.

Further, Sparkie's case clearly determined that if an agreement is irredeemably unenforceable (and POSSIBLY even if it is only temporarily unenforceable) the Creditor may NOT report a Default as the CRA's do not currently have the ability to add a 'Unenforceable' marker to a Default marker to fully and accurately reflect the true position.


In your case, you state they have consistently failed to supply a copy of the original signed agreement - without this they cannot enforce where the agreement was made prior to April 2007 (again, others may well disagree with this point but I have used this to my advantage several times in court actions) - obviously you need to get evidence to confirm your thoughts that the agreement was taken out earlier than they say for this to take effect.

So, if they cannot enforce, they have no lawful right to process the Default and Sparkie's ruling , being in the Court of Appeal, is binding on the lower courts (such as the County Court).


Where to go from here?

This is purely my personal point of view and only based on my personal experience, NOT legal training! -

Write to Barclay's quoting the Grace v Black Horse in Court of Appeal, 2014 case and demand that they either supply a true copy of the executed agreement, or remove the Default from all CRA files with immediate effect.

Also state that (not withstanding your point regards the unenforceable agreement) you believe the Default actually took effect in January 2008, not the dates they claim and have evidence to that effect by way of the Mercers Default notice.


Again, from a personal PoV I'd be demanding compensation from them for continuing to report a Default both beyond the 6 year recognised timeline and with regard to an unenforceable agreement.

[ncf355]

Re: Barclaycard - double default on credit file ???

Thanks-Barclays can't sell the debt on as it needs proof that the debt exists-the original agreement. I have sent 3 or 4 CCa's to Barclays to no avail-they just don't have it. I am content to let this go as it is-just trying to clean up my credit with the reference agencies. Mc

Don't fool yourself into thinking lack of an agreement would stop them selling it on to a DCA - they could and would!

[spirit2534]

Re: Barclaycard - double default on credit file ???

Evidence on this forum shows that many DCA's regularly buy debts without agreements. They therefore are unable to produce them when a CCA notice is served.

Since they buy the debts at a very significant discount usually 10-15%, they rely on getting default judgments which the removes the necissity for a copy of the agreement.

[nemesis45]

Re: Barclaycard - double default on credit file ???

It is not a case of " regularly buying debts without agreements" the accounts are sold in bulk, " portfolio" lots which you will often reflected in the name of a debt purchaser e.g. Lowell Portfolio 1,

The absolute minimum of data is provided, the debtors name, address, contact details, amount owing and little else many of the debts in a portfolio are of small value and or significantly old and have little likelihood of being successfully pursued.