Lowells/Barclaycard

[rizel23]

I have had an ongoing dispute with Barclay card since June 2009.

To cut a long story short;

I have CCA'ed Barclay Card and all they sent was some photocopied T&C's i did not recognize.

I further sent a SAR request making clear i requested a copy of my original signed CCA, this was not included and Barclaycard stated this is all the information they held on me;

http://i26.tinypic.com/v2ryb9.jpg

They did however sent a photocopy of an application form;

http://i26.tinypic.com/1zppq44.jpg

The account subject to Mercers tatics & various other DCA's acting on behalf of Barclaycard. Account in dispute letters were duly replied back too.

Mercers Defaulted me;

http://i32.tinypic.com/whjxww.jpg

From what i understood at the time it was defective as it did not list the original creditors name or address and the time to rectify was not sufficient (2 days short due to bank holiday)

As a DCA at the time was demanding FULL payment on the account on Barclaycards behalf i wrote to Barclaycard and accepted there unlawful repudiation of contract.

The account has since be passed to around 5-6 different DCA, but appears now Lowells have bought the debt;

http://i54.tinypic.com/2ag2i6d.jpg

I have a futher 2 letters, to which i have ignored, as as far as i'm concerned the account is still in dispute over the request for the original CCA.

As a professional registered legal company it appears they have not taken the time to read through my account.

Would it be best just to send an 'in dispute' letter to them, or is there any futher advise members could reply with on how to proceed from here on?

Many thanks

[rizel23]

Re: Lowells/Barclaycard

anyone?

[teaboy2]

Re: Lowells/Barclaycard

Well you should not have wrote accepting repudiation as you would still be liable to pay back the full amount under the agreement, you should have simply sat and waited for them to take it to court and counter claimed for unlawful rescission (see my blog post for info) - Don't worry though as its not the end of the world as you will see from what i write below.

If they have no credit agreement then its unenforceable, plus they have no agreement that proves the debt exist therefore should not be putting a default on your credit file, i would write to the credit agency to have it removed as its inaccurate. The default notice is invalid as it is not from the original creditor and only the original creditor can issue a default notice. Plus it would be invalid as you would not have the full statutory 14 days to remedy from date of service, i.e. its dated the 27 (a thursday) so first class post requires 2 "working" days before its deemed served, so it would not been deemed served till the august 31, which gives you from the 1st to the 14th september to pay, but the notice states before the 13th making the last date for remedy the 12th, so they only gave you 12 days to remedy so it is invalid on that point too. Plus its invalid as it is not to prescirbed form i.e. as per Consumer Credit (Enforcement, Default and Termination Notices)
Regulations 1983 - http://www.johnpughschambers.co.uk/C...ons%201983.pdf (Bascially it fails to mention anything about what action they will take if you fail to remedy such as termination. So lack of prescribed form makes it invalid too.

So its invalid and unenforceable on the CCA agreement and invalid and unenforcable on the Default notice. So if they took you to court the court would not be able to enforce it. But since you have accepted their repudiation, then you won't beable to claim unlawful rescission and will still be liable to pay the debt, regardless. But as they can not enforce it in the court, then i would look at getting the default removed due to it being inaccurate and unlawfully issued by the DCA when the Original Creditor should have issued it but failed to do so.

But first before you write any further letters, who OWNS the account now, barclays or the DCA (i.e. have you had a notice of assignment from the DCA?) as we need to be sure the original creditor does not own the debt/account anymore before we can mentions the invalid default. The reason why, is if the original creditor still owns the debt/account then they can simply issue a new valid DN. Where if they sold the account then they can not reissue a new DN and neither can the DCA as the agreement ceased to exist when they sold the account, though the liabilites under the agreement continue to be due. Until Statuted barred (i.e. 6 years where you have not made any payments or acknowleged the debt).

Just read the lowell letter as it states it was sold to them, then they own it but as it is not titled NOTICE OF ASSIGNMENT (LAW OF PROPERTY ACT 1925) then we can not be certain to the validity of their claims. I would write to lowell asking them for a copy of the actual notice of assignment under the law of property act 1925 making it clear their introduction letter is not sufficient enough as anyone can write an introduction letter stating they bought the dog mess on their doorstep. (maybe not use my exact words, got histroy with lowells and love telling them to sit and swivel lol).

Once they send you the notice of assignement i would refer to what i have written above about the CCA and Default Notice and write a letter making your position clear to them, then contact the credit reference agency to have the default removed on grounds that the DN issued was invalid but also unlawfully issued by a thrid party and not by the original creditor who was is the only entity that can issue such notices and defaults to your credit file.

[rizel23]

Re: Lowells/Barclaycard

Great advise teaboy2

Many thanks!

Yes in hindsight i did wrong writing accepting repudiation.

I have had further letter today offering me 20% off the balance, hmmm.

Is there a decent template letter around for for requesting notice of assignment from Lowells? Or will a simple letter just do?

Thanks again.

Read more at: Lowells/Barclaycard - Legal Beagles Consumer Forum

[MIKE770]

Re: Lowells/Barclaycard

Amazing how these companies pass an alledged debt on instead of applying for CCJs,
makes you wonder if such big organisations are capable of doing business in any correct manner, if it you or I we would be homeless for stupidity?

[Caspar]

Re: Lowells/Barclaycard

Mike,

With the greatest of respect, there is nothing to stop a company passing a debt on for collection rather than getting a CCJ, so nothing has been conducted in an incorrect manner.

Often, it works out better for the debtor if it is passed to a DCA.

[teaboy2]

Re: Lowells/Barclaycard

Great advise teaboy2

Many thanks!

Yes in hindsight i did wrong writing accepting repudiation.

I have had further letter today offering me 20% off the balance, hmmm.

Is there a decent template letter around for for requesting notice of assignment from Lowells? Or will a simple letter just do?

Thanks again.

Read more at: Lowells/Barclaycard - Legal Beagles Consumer Forum

You could just write a simple letter, though they are not force to reply, but if you include a reference to "OFT Guidlines make it clear you must comply with my simple request for informtion and prove of the debt being owed to yourselves - Therefore if you fail to provide the requested documentation i will deem your response as being that you do not have the rights to this alleged debt or legal ownership of it."

The only other way would be a Subject acccess request, which is a bit pointless sending to lowells at the moment and would require a statutory fee of £10 to be paid by you. So i would try the simple letter first and see what their response is, do not mention anything about the DN being invalid though until you have the notice of assignment.

P.s. if they are offering a discont then chances are they know themselves its not enforceable.

[Caspar]

Re: Lowells/Barclaycard

....... or so many charges have been added which you could reclaim that they can afford the discount while still making a profit from you.

[rizel23]

Re: Lowells/Barclaycard

Well my apologies, this covering letter was at the bottom of my filing cabinet;

http://i51.tinypic.com/2s0g0pd.jpg

is this the notice of assignment we are currently discussing?

My file on Barclaycard is massive since this dispute began as i kept everything.

thanks,

[teaboy2]

Re: Lowells/Barclaycard

Well my apologies, this covering letter was at the bottom of my filing cabinet;

http://i51.tinypic.com/2s0g0pd.jpg

is this the notice of assignment we are currently discussing?

My file on Barclaycard is massive since this dispute began as i kept everything.

thanks,

Yep thats the one, now hit them with a letter outlining what i said in post 3 regarding the DN and the CCA being invalid and unenforceable - Start the first sentence as I do not acknowledge any debt owed to yourselves.

And contact the credit reference agency to get the Default removed from your file on grounds on inaccuracy and unlawful entry since it was a 3 party and not the original creditor (who was still the current owner of the account at the time) that entered the DN. And due to the dates the account was started being wrong.

[rizel23]

Re: Lowells/Barclaycard

thanks.

So there is no chance of Barclaycard or Lowell's being able to reissue a new vaild default notice at all even through the courts if needed be?

[teaboy2]

Re: Lowells/Barclaycard

Absolutely correct

Unfortunately for them they terminated of the back of not just an invalid default notice but an unlawful default notice issued by a 3rd party that did not have the legal right to issue such notice as they were not a party to the original agreement.

Also as the debt has been sold the agreement has be terminated unlawfully (unlawful rescission) though you acceptance of their repudiation (which would follow on from the rescission of the contract) means you can not claim unlawful rescission. But the termination itself as a result of the sale to Lowells means the original agreement no longer exists, only the liabilites under it (money owed) and as the agreement no longer exists then they can not issue a default notice under said agreement. Only way they can re-issue is if lowell sell it back to barclay card and they ask your consent to reinstate the agreement, (though they never ask). In the event that happens and they never ask you your consent to reinstate then the agreement is no reinstated and all you need to do is send a letter outlining that the agreement ceased to exist when sold to lowells, and as they never asked your consent to reinstate the agreement then the reissued DN is not valid as their is no agreement in place that allows them to issue such notice lawfully, nor do you consent to any such reinstatment of said agreement.

Its as simple as that, though they will obviously try it on and tell you otherwise, but its all just a ploy to trick you.

[rizel23]

Re: Lowells/Barclaycard

thanks teaboy.

So in effect if i do reply to Lowells I'm likely to have the merry go round again like with other DCA's?

I presume now i would have an absolute defence in case Lowells went to court or applied for a CCJ and that if it reached that point i would put my defence in that the DN is invalid and unlawful let alone the lack of true CCA that could be requested at court time.

I'm just waying up my options. I have be gun ho with DCA's acting on behalf of Barclaycard before and the minute you challenge them a new one appears and the circle continues!

[teaboy2]

Re: Lowells/Barclaycard

thanks teaboy.

So in effect if i do reply to Lowells I'm likely to have the merry go round again like with other DCA's?

I presume now i would have an absolute defence in case Lowells went to court or applied for a CCJ and that if it reached that point i would put my defence in that the DN is invalid and unlawful let alone the lack of true CCA that could be requested at court time.

I'm just waying up my options. I have be gun ho with DCA's acting on behalf of Barclaycard before and the minute you challenge them a new one appears and the circle continues!

Thats right but obviously we will need to provide a detailed defence as to why, but we can do that at the time, though in my experience they when told the law they back off, perhaps quoting my user name in your letter will help to as they are more then aware of who i am lol.

[rizel23]

Re: Lowells/Barclaycard

have been away on holiday and 'Red Debt Collections' have now taken over this alleged account, strange how they are part of the same group. Low and behold i have now had a letter from Lowells with 'Statement Of Account' sent under 1974 CCA.

I have not made any contact yet as seems pointless, they will send letters regardless.

I shall either reply to one of there letters once a "50% off" type form comes through pointing out reasons why the debt they have purchased has two major flaws or wait till/if they eve take court action and file my full defence.

I take a little pleasure knowing that every letter they send is costing them postage :-) and i'm getting quite a pile now in my filing cabinet!