Barclaycard wont accept payment.

[circatrova]

Hi Slick,
Sent off the letter as suggested and pointed out that illegible photocopies of T&Cs is not sufficient and got this reply ,can you please help ?.
Any idea what to send next,
Many Thanks in advance
Circa

I write further to the letter whereby you note disatisfaction to the documents you received to a request made under section 77/78 of the consumer credit act 1974

Firstly, credit cards are regulated under section 78. Section 78(1) of the act stated that the creditor shall give the debter a copy of the excuted agreement and a statement of account which is practicable to refer. Regarding a statement of account which is practicable to refer, the letters which we send in responce to a section 78(1) request includes this information. To cover the issue of executed agreement.

HOW DOES THE ACT DEFINE AN 'EXECUTED AGREEMENT'?

'Executed agreement' is defined in section 189 of the Act as 'a document, signed by or on behalf of the parties, embodying the terms of a regulated agreement...'

WHAT DO THE RULES SAY ABOUT PROVIDING A COPY?

The consumer credit (cancellation notice and copies of documents) Regulations 1983 ('The Regulations') made under the act deal with how we are to provide a 'copy' of the agreeent. These regualtions provide that any copy of the agreement supplied to a debter should be a 'true' copy. Regulation 3(2) provides that a copy may omit certain information, which allows you to be provided with a true copy, not a complete copy.

WHAT HAPPENS IF THE ORIGINAL AGREEMENT HAS BEEN VARIED SINCE IT WAS ORIGINALLY SIGNED?

The regulation also set out what should happen where the agreement has been varied since it was signed. Regulation 7 provides creditors with a choice of including in the copy of the executed agreement either a copy of the latest notice of variation relating to each discrete term which has not been varied. Regulation 7 does NOT state that the copy of the agreement shall include a statement of the original terms as well as a statement of the varied terms. Regulation 7 allows us to provide you with a 'true copy' which sets out the terms and conditions current at the time of provision of the copy.

CONCLUSION IN RELATION TO THE DOCUMENT WE HAVE TO PROVIDE

A 'copy' of an agreement will satisfy the requirements even if the signature box and/or the signatures are not included as clarified by regulation 3(2) of the consumer credit (cancellation Notice and copies of documents) Regulations 1983

The definition of 'executed agreement' refers to a document embodying the terms of the regulated agreement. When this is read with with Regulation 7 - for agreements that have been varied - a copy of the original agreement would not embody its terms. A copy of the agreement as varied would embody its terms.

The issue of what is an executed agreeent has been interpreted in th High Court. It was held that an executed agreement begins as a credit agreement which is sent to the cardholder when they receive their credit card: therefore, establishing what is the original executed agreement. When the agreement has benn varied, Regulation 7 mentioned above applies.

To summarise, if the agreement has not been varied, we must send the origanal executed agreement: this would be the credit agreement which is currently regulated. If the credit agreement has been varied, we must send the current credit agreement as this will contain the terms of the regulated agreement. We have sent you this and the original executed agreement for reference.

I hope this letter has helped with your concerns about the documents you have been supplied with under section 78 of the consumer credit act 1974. As our response fulfils the obligation under Section 78 of the Consumenr Credit Act 1974, you should carry on paying the debt you have accured on your account. We do not class the account in dispute, as you have been supplied with the relevent documentation under Section 78 of the Consumenr Credit Act 1974 and we will carry on with collection serices.

Yours Sincerly

Court Orders and Disclosures.

[tosh1]

Hi circatrova

I think bc are sending this type of letter to all people who request a cca. I have sent them a reply like the one below -

Dear Sirs

Account number

I write with regards to the above account with your organisation.

I respectfully request that you provide me by return a copy of the credit agreement which bears my signature. I require this as i have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed.

obviously if the agreement is improperly executed i would be entitled to ask the court to consider the agreement and make a declaration of the rights of parties to the agreement.

I must stress this request is NOT made pursuant to section 78 Consumer Credit Act 1974 but is made pursuant to the Civil Procedure Rules ( Pre action protocols and Part 31.16) and therefore unsigned copy will not suffice, only a copy of the original contract in its unaltered form will suffice in these circumstances

Please confirm if you still hold a copy of my signed agreement and that you will provide me with this document.

I do not view this as an unreasonable request given that by supplying the document which i have asked for it will allow me to assess if my case has merit and will help to resolve matters possibly without the need to involve the court and will undoubtedly save costs on both sides

hope this helps.

	County Court guidebook by Judge Patricia Pearl Follow this link to read the review of this excellent Small Claims Guidebook. This comprehensive and very accessible guide will take you through the process of suing or defending a claim. This guide will help you take control of your litigation and make you more confident about doing it yourself. Applies to England and Wales

[circatrova]

Hi Tosh,thank you for that.Can I ask if your letter/response to B/C has been tested ,have you had a reply?Has the author of this letter had a positive response?

I am not familiar with Civil Procedure Rules ( Pre action protocols and Part 31.16),is this to be used if you are bringing legal/court action as a claimant?and can it only be used in this context,in other words: do you have to start action to use this protocol?.

I am really confused by the gobbledegook they have sent me and cant see how this mitigates the illegibility issue of the T&Cs they have sent me.,
Thanks again for taking the time Tosh1 and would still like to hear Slicks comments or any other experienced site members as this stadard relpy from B/C seems very dismissive and combative.
Any help always appreciated
Regards Circa
,

	County Court guidebook by Judge Patricia Pearl Follow this link to read the review of this excellent Small Claims Guidebook. This comprehensive and very accessible guide will take you through the process of suing or defending a claim. This guide will help you take control of your litigation and make you more confident about doing it yourself. Applies to England and Wales

[slick132]

Hi Circa,

You may like to read this - why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement

[circatrova]

Hi Slick,Happy New Year

Thanks for the link to the thread,is this the right area to formulate a response,I find alot of this difficult to understand and could do with an explanation in laymans terms

Can you recommend the correct response to to the B/C letter containing the first heading HOW DOES THE ACT DEFINE AN 'EXECUTED AGREEMENT'?

Stuck what to write next,what line does the argument take?
Regards Circa

[slick132]

Hi Circa,

If you're going to try the CPR 31.16 route, don't worry about arguing the toss with BC.

Read through PT's thread and send off your letter to BC, or post it here if you want it checked first.

[circatrova]

Many Thanks Slick,

You say If you're going to try the CPR 31.16 route,can I ask what other options/directions are open to me?

I have read the thread you suggested and whilst it makes fascinating reading I found it to be somewhat ambiguous and inconclusive, with the costs issue seeming a real danger,I say that respectfully as i know the subject was intelligently debated.
Cant find much other giudance to follow the last letter from B/C ,if there is no other routes to follow at this time can you please let me know so as to make a decision on what to do next

Your Help much appreciated,
Circa

[slick132]

Hi Circa,

The problem is that the CCA route usually ends up with an impasse. You argue the agreement, that they say is proper and valid, is not. They argue it is, and they'll continue to demand payment.

The bottom line is whether they, or Mercers or other DCA, issue court proceedings to enforce the "debt".

If you want to stick with the CCA route, that's fine but it'll drag on and they'll continue to press for payment and call repeatedly. This may die down when they realise you're not intimidated by their tactics and they'll move on to someone who they can bully more easily.

Rather than try and reply to the detail of their last letter, you can reply saying:-

You have failed to supply a copy of the executed Credit Agreement. While you may feel you have complied with your obligation to reply to my CCA request, without the signed Agreement, the debt cannot be enforced by a court.

If you cannot supply the signed Agreement, please confirm this in writing. I also require that you stop adding charges and interest to the account and remove any negative markers relating to the alleged debt from my credit records.

If you disagree, no dount you will issue court proceedings forthwith.

Just my suggestion and, if you hunt around, you'll find templates which say it all, but in a longer version. BC will probably ignore it anyway.

	Debt collection library Follow this link to our debt collection library. This library contains templates and advice for dealing with debt collectors who act oppressively or unfairly. This library is work in progress and will be built up over the next few weeks. 17.03.09

[circatrova]

Thank you Slick ,I totally agree with you on the CCA impasse,and I know some of this work is somewhat pioneering as maybe with CPR in this context,I just find the impasse and B/C total lack of sensible communication very frustrating.

I like difinitive answers and know now that in this case it is not always possible,the banks truly are a law unto themselves.

You response does give me an alternative line ,so I will now chew over and make a decision and act on it.

So thank you for help it is much appreciated.
Kind Regards Circa

[slick132]

I just find the impasse and B/C total lack of sensible communication very frustrating.............. .......the banks truly are a law unto themselves.

This is no coincidence - because there is no remedy or legal recourse to stop them doing this, they continue to try and frustrate and bamboozle peeps into giving up.

[bazaar]

Hi Circa
Just my 2 bobs worth,
I feel that the CCA route is valid, because it'll show that youve tried your very best within the law to try and get information from them that would halt any court actions (CPR).
So once you get to the impasse, then its time to go for the CPR31 and demand sight of the correct document or to have them admit they dont have it, befor any litigation.
The thread by PT will most likely work now because they have sent an 'agreement' that is not enforceable (If thats the case).
So you would base your request around what they claim is the agreement. Then if they cant produce the signed version after your CPR 31. they may well be a tad unstuck

[circatrova]

Originally Posted by bazaar

Hi Circa
Just my 2 bobs worth,
I feel that the CCA route is valid, because it'll show that youve tried your very best within the law to try and get information from them that would halt any court actions (CPR).
So once you get to the impasse, then its time to go for the CPR31 and demand sight of the correct document or to have them admit they dont have it, befor any litigation.
The thread by PT will most likely work now because they have sent an 'agreement' that is not enforceable (If thats the case).
So you would base your request around what they claim is the agreement. Then if they cant produce the signed version after your CPR 31. they may well be a tad unstuck

Thanks Bazaar,your 2 bobs worth is most welcome, and is a very sensible synopsis,I just find that after reading so much on here,my mind sometimes spins and I am unsure of most effective way to proceed.
Much Appreciated
Circa