Debt Star vs Sharklaycard

Righty-o. This is the story so far. Any help and tips would be appreciated.

I had a repayment plan with Sharklaycard. They stopped sending me statements at the end of last year and I stopped paying them due to a bank error (cancelled my DD and I wasn't aware of it at first). Anyway, I'm not receiving Sharklaycard's letters and statements. I miss payments March - June.

Sharklaycard cancel the repayment plan. That is the first letter I receive.

The next is a DN from Mercers and I pay them a sum to get the card payments brought uptodate.

I then CCA and SAR Sharklaycard. It transpires from SAR that Sharklaycard's have been sending my statements and letters to New Zealand (I lived there a few years ago but since that point they have been using my correct UK address, until earlier this year!).

The SAR only provides statements back to 2004 (6 years) and they have failed to confirm if I paid ppi prior to that point (took out card in 1999). Lots of £12 and £20 odd charges these past 6 years.

NO CCA received so I sent the Failed Letter.

The CCA came back 40 days late with a letter dated 2 weeks earlier than it was received. It contained an almost illegible copy of their T&C from 1999 only. Their letter says a "reconstructed CCA" is enclosed. It wasn't. just the T&Cs which are partly illegible.

I got their final response in the post today. It is the first and only 'personalised' loetter they have sent since the dispute started in July.

My questions are:

Can they send reconstructed CCAs? They didn't enclose one, but can they?

Can they get away without sending me a CCA? Nothing received despite their letter saying it was enclosed.

They provide no breakdown of charges since 1999. Can they get away with this?

Details of my complaint about the cancellation of the repayment plan have been ignored. True, I stopped paying them, but then again they were sending my statements and threatograms to New Zealand and I never received them

They demand I telephone them to discuss the repayment plan. Can they do this?

Can the FOS order them to reinstate my repayment plan?

Can they threaten recovery for the minimum payment? Which I can't afford BTW

Hope some people can help me.

[Sapphire]

Re: Debt Star vs Sharklaycard

Righty-o. This is the story so far. Any help and tips would be appreciated.

I had a repayment plan with Sharklaycard. They stopped sending me statements at the end of last year and I stopped paying them due to a bank error (cancelled my DD and I wasn't aware of it at first). Anyway, I'm not receiving Sharklaycard's letters and statements. I miss payments March - June.

Sharklaycard cancel the repayment plan. That is the first letter I receive.

The next is a DN from Mercers and I pay them a sum to get the card payments brought uptodate.

I then CCA and SAR Sharklaycard. It transpires from SAR that Sharklaycard's have been sending my statements and letters to New Zealand (I lived there a few years ago but since that point they have been using my correct UK address, until earlier this year!).

The SAR only provides statements back to 2004 (6 years) and they have failed to confirm if I paid ppi prior to that point (took out card in 1999). Lots of £12 and £20 odd charges these past 6 years.

NO CCA received so I sent the Failed Letter.

The CCA came back 40 days late with a letter dated 2 weeks earlier than it was received. It contained an almost illegible copy of their T&C from 1999 only. Their letter says a "reconstructed CCA" is enclosed. It wasn't. just the T&Cs which are partly illegible.

I got their final response in the post today. It is the first and only 'personalised' loetter they have sent since the dispute started in July.

My questions are:

Can they send reconstructed CCAs? They didn't enclose one, but can they?
As far as I know it has to be a TRUE copy.
Can they get away without sending me a CCA? Nothing received despite their letter saying it was enclosed.
Doubt it, can they prove they sent it ? Have you written back and told them you want a TRUE copy.
They provide no breakdown of charges since 1999. Can they get away with this?
AFAIK they have to provide you with everything you have asked for, otherwise they are in breach of the request.
Details of my complaint about the cancellation of the repayment plan have been ignored. True, I stopped paying them, but then again they were sending my statements and threatograms to New Zealand and I never received them
Not sure about this to be honest.
They demand I telephone them to discuss the repayment plan. Can they do this?
No they cannot, you can state that you will deal with them in writing only.
Can the FOS order them to reinstate my repayment plan?
Sorry I have no idea, but I would hope so, but then again you could send them and income and expenditure form and show that you can't afford to pay more.
Can they threaten recovery for the minimum payment? Which I can't afford BTW
They can threaten but if you can't afford it then they are not going to get it are they, you can't give what you can't afford.
Hope some people can help me.

I hope that helps a little bit till someone else pops along with more.

[The Debt Star]

Re: Debt Star vs Sharklaycard

I hope that helps a little bit till someone else pops along with more.

thanks sapphire

[Brian]

Re: Debt Star vs Sharklaycard

Debtstar how much is the total amount owed? (your numbers not theirs)

Bri

[The Debt Star]

Re: Debt Star vs Sharklaycard

£4500

[Amethyst]

Re: Debt Star vs Sharklaycard

As per Carey yes they can get away with sending a reconstructed CCA so long as it is a true copy (ie cobbled together what you would have had showing exactly same terms, figures etc - doesnt have to look the same just have the same info on)

“A creditor could satisfy its duty under section 78 of the Consumer Credit Act 1974, to give a debtor, when asked in writing, a copy of the running-account regulated credit agreement and other documents referred to therein, by providing a reconstituted version of the executed agreement, which might be from sources other than the signed version.”

a creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself.

http://www.bailii.org/ew/cases/EWHC/QB/2009/3417.html

[Amethyst]

Re: Debt Star vs Sharklaycard

The SAR entitles you to a list of transactions on the account for as long as they hold them (which they will argue is only 6 years) anyway, they have no obligation to sort out which are charges and which arent - thats what highlighter pens are for lol.

The repayment plan - yes confirm in writing to them that you will only deal with them in writing and if you are setting up a new repayment plan with them to avoid the default going to termination? then enclose your IE and show the offer you are making to them. If you cant do the minimum payment as well as an offer on the arrears then ask them to freeze interest / charges for 6 months initially and accept £1 a week (or whatever you can afford) as a bit of breathing space, and also in that letter confirm you changed your address on xxx and complain about them sending your mail suddenly back to NZ when they have sent it here for the last xxx months - and also mention about the true copy they say they sent but didnt and tell them you want it.

If they want to sue you they will need a true copy of the agreement.

[TomThumb]

Re: Debt Star vs Sharklaycard

Ok, just a couple of points about the s78 request... if were sticking by Carey here then a) The re-constructed s78 response MUST have the address of when you took the card out. b) If the agreement has been varied in any way (eg. apr% or credit limit) then Carey states the ORIGINAL plus variations must be supplied.

Also the DN issued by Mercers, if Barclaycards(creditor) address isnt on it possibly a breach of the DN regulations, Mercers are a seperate registered company:tinysmile_hmm_t2:.

By all means negotiate with them but keep the above in mind and ensure you are the one making the decisions and not them.

S.

[middenmess]

Re: Debt Star vs Sharklaycard

Seems a little strange that they have to 'reconstruct' your agreement but are able to send you a copy of the T & C's they say were those belonging to your agreement.They often just supply a copy of the original application form that you filled in, which they seem to have retained on microfiche.

If and when you eventually write to them include a request for a better copy of the T & C's as it is a possibility that they will send a another [different] version with subtle differences.After sending me 3 different sets of T & C's allegedly from the inception of the account they finally admitted that as they were unable to supply the correct ones they were unable to enforce.[until they locate the correct ones that is-12 months and counting]

As Tom Thumb has just posted, a default notice must have the name and address of the creditor on it so if you go into default again it might well be that Mercers again send the default notice and if it excludes Barclaycard's name and addy it ain't worth squat--if they then terminate on the back of that .......!

Regrettably Barclaycard/Barclays are at best economical with the truth when dealing with us and will try to get anyway with anything in an attempt to make us pay up--they are also very selective in what questions they will respond to.

Their final response is often the first of many 'final responses'.

[The Debt Star]

Re: Debt Star vs Sharklaycard

thanks guys

[Angry Cat]

Re: Debt Star vs Sharklaycard

reg 3 of the consumer credit cancellation notices & copies of documents regulations 1983 states that signatures and names may be omitted.

However;

In respect of regulation 7 which states;

7(1) Where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the executed agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either -

a) an easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement which has been varied;

or

b) an easily legible statement of the terms of the agreement as varied in accordance with section 82(1) of the Act.

Reg 7 refers to a copy of the EXECUTED AGREEMENT and that sub sections a) or b) are in addition to this and not any alternative to sending the "ACTUAL EXECUTED AGREEMENT".

[The Debt Star]

Re: Debt Star vs Sharklaycard

Thanks. I have read over on CAG that creditors are not obliged to send a CCA now - and that they need only send t&c from the time the account was taken out.

Is this cforrect? If so I have totally misunderstood the whole CCA request thing as I thought we were entitled to a copy of ther credit agreement.

[Dizzie]

Re: Debt Star vs Sharklaycard

Hi Debt Star

I'm sure the full monty of the Carey case is on the site somewhere - but I've cribbed this bit from from the Times

His Lordship reached a number of conclusions on the preliminary issues:
First, a section 78 copy had to contain the name and address of the debtor as it was at the time of the execution of the agreement but the creditor could provide those details from whatever source it had of those details and not necessarily from the executed agreement itself.

He went on to say

Third, if an agreement had been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms. (This bit confuses me - because earlier he says re-constructed is OK - but here he says you must still provide a copy of the original - back round in a circle - or am I being a pendant! Would that be a re-constructed copy of the original??)

Fifth, the court had jurisdiction to declare whether in a particular case, there had been a breach of section 78. It would depend on the circumstances of that case as to whether it would be appropriate to grant such a declaration.


The following principles were correct in the context of section 61 in assessing whether those prescribed terms were “contained” in an executed agreement:
First, it was not sufficient for the piece of paper signed by the debtor merely to cross refer to the prescribed terms without a copy of those terms being supplied to the debtor at the point of signature.

He then went on about how the T & C's had to be linked to the agreement. which is worth reading if you applied on a tear out page of a booklet you picked up in a branch.

So all in all I'd say no a copy of T & C's aren't enough

Cheers Wils

[Angry Cat]

Re: Debt Star vs Sharklaycard

The answer is in my post number 11, debt star.

[The Debt Star]

Re: Debt Star vs Sharklaycard

I've received a pretty viscious letter from Sharkcrapcard today basically telling me the reconstructed copy they didn't enclose with their pre-dated letter is sufficient and that they don't recongnise the dispute. They say they will get a DCA onto me and recorda default etc if I don't start paying by X date.

As mentioned already, they didn't enclose a copy of the reconstructed agreement anyway, let alone a true copy of the executed agreement they are obliged to sign as per posts #11 and #13.
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So I've written to them as per posts 11 and 13. I have to say that all i am trying to do is get these guys to reinstate a repayment agreement and cough up some unlawful charges.